Calderon-Ortega v. United States , 753 F.3d 250 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-1498
BLANCA CALDERÓN-ORTEGA,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Marcos E. López, U.S. Magistrate Judge]
Before
Lynch, Chief Judge,
Torruella and Selya, Circuit Judges.
Jorge Martínez-Luciano, Emil Rodríguez-Escudero, and Martínez-
Luciano & Rodríguez-Escudero on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Thomas F. Klumper, Assistant United States Attorney,
on brief for appellee.
May 16, 2014
SELYA, Circuit Judge. When a dangerous condition is
present on commercial premises and injury results to a business
invitee, tort liability often turns on whether the owner or
occupier knew or reasonably should have known of the existence of
the hazard. See, e.g., García-Catalán v. United States, 734 F.3d
100, 102 (1st Cir. 2013); Gomez v. Stop & Shop Supermkt. Co., 670
F.3d 395, 397 (1st Cir. 2012). This is such a case and, in the
wake of a bench trial, the district court concluded that the
evidence failed to show that the defendant had the requisite
knowledge (actual or constructive). Accordingly, the court entered
judgment for the defendant. After careful consideration, we
affirm.
We start by rehearsing the origin and travel of the case.
Our task is simplified because the parties have stipulated to many
of the facts.
On January 27, 2010, plaintiff-appellant Blanca Calderón-
Ortega visited the Fort Buchanan Post Exchange store (PX) in San
Juan, Puerto Rico. The PX is located on the grounds of the
military base and is operated by the Army and Air Force Exchange
Service. After the plaintiff had shopped for a while, she
proceeded toward the check-out area to pay for her purchases. En
route, she slipped on liquid that was present on the floor in front
of one of the cash registers.
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The shift manager was summoned and responded promptly.
He offered to call an ambulance, but the plaintiff declined and
left the premises. The next morning, she sought medical treatment.
Following a series of doctors' visits, she was diagnosed as having
a seven-percent whole-person impairment stemming from the fall.
The plaintiff filed an administrative claim against the
United States, and the statutory period allowed for consideration
of her claim expired without a disposition. See 28 U.S.C.
§ 2675(a). She then repaired to the federal district court and
sued under the Federal Tort Claims Act (FTCA), id. §§ 1346(b),
2671-2680. Her complaint averred that PX personnel had been
negligent both in preventing the spill and in failing to clean up
the liquid.
The parties consented to proceed before a magistrate
judge. See id. § 636(c); Fed. R. Civ. P. 73. Following some
preliminary skirmishing not relevant here, the district court (in
the person of the magistrate judge) conducted a bench trial. At
the close of all the evidence, the court reserved decision and
solicited post-trial briefs. Several weeks later, the court handed
down an opinion in which it found the defendant not liable for the
plaintiff's injuries. See Calderón-Ortega v. United States, No.
11-1771, 2013 WL 427209, *1 (D.P.R. Feb. 4, 2013). The court
determined that the plaintiff's failure to establish the
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defendant's actual or constructive knowledge of the spill was
dispositive. See id. at *7. This timely appeal ensued.
We previously have explained that "an appellate court
will displace factual findings made in the aftermath of a bench
trial [only] if those findings are clearly erroneous." United
States v. 15 Bosworth St., 236 F.3d 50, 53 (1st Cir. 2001). Even
so, we review the trier's conclusions of law de novo. See
Wojciechowicz v. United States, 582 F.3d 57, 66 (1st Cir. 2009).
As a sovereign nation, the United States is open to tort
liability only insofar as it consents to be sued. See Nieves-
Romero v. United States, 715 F.3d 375, 378 (1st Cir. 2013). To
this end, "[t]he FTCA comprises a limited waiver of federal
sovereign immunity, which allows the government to be held liable
for certain tortious acts and omissions." Id. The FTCA mandates
that an inquiring court must look to "the law of the place where
the act or omission occurred" when making a liability
determination. 28 U.S.C. § 1346(b)(1). In this case, then, we
must extract the substantive rules of decision from Puerto Rico
law.
Under Article 1802 of the Puerto Rico Civil Code, "[a]
person who by an act or omission causes damage to another through
fault or negligence" may be held liable for the damage. P.R. Laws
Ann. tit. 31, § 5141. To establish liability, the plaintiff must
show that the defendant owed a duty to the plaintiff, that the duty
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was breached, that damages resulted, and that those damages were
caused by the breach of duty. See Nieves-Romero, 715 F.3d at 378-
79 (citing Sociedad de Gananciales v. González Padín Co., 17 P.R.
Offic. Trans. 111, 125 (P.R. 1986)).
In the case at hand, the first element of the claim is
apparent: one who operates a business for profit undeniably owes a
duty of reasonable care to business invitees. See Cotto v. Consol.
Mut. Ins. Co., 16 P.R. Offic. Trans. 786, 793 (P.R. 1985). Our
inquiry, however, stops with the second element: breach of duty.
A business invitee who alleges a breach of the duty owed
by the owner or occupier of commercial premises normally must show
"that the injury was reasonably foreseeable (and, thus, could have
been avoided had the defendant acted with due care)." Woods-Leber
v. Hyatt Hotels of P.R., Inc., 124 F.3d 47, 50-51 (1st Cir. 1997);
see Coyne v. Taber Partners I, 53 F.3d 454, 459-60 (1st Cir. 1995).
It follows, therefore, that "[i]n a premises liability case, fault
ordinarily depends on knowledge." Nieves-Romero, 715 F.3d at 379;
see Woods-Leber, 124 F.3d at 50 n.5 (noting that "Puerto Rico law
ordinarily requires a demonstration of the owner's or occupier's
actual or constructive knowledge of the harm-causing condition").
There is no showing of actual knowledge of the dangerous
condition (the spilled liquid) here. The district court found that
neither the cashier stationed near the aisle where the liquid had
spilled nor any other employee of the PX knew of the spill at any
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time prior to the plaintiff's fall. See Calderón-Ortega, 2013 WL
427209, at *5. This finding is consistent with the record,1 and we
cannot say that it is clearly erroneous. Thus, the case turns on
the evidence or lack of evidence that the defendant had
constructive knowledge of the liquid on the floor.
In an effort to substantiate her claim of constructive
knowledge, the plaintiff labors to convince us that the spill could
have been discovered by reasonable inspection. Her argument has
two facets.
First, the plaintiff contends that the PX's staff
neglected to adhere to the PX's established inspection policies.
This contention leans heavily on the cashier's testimony that she
was trained to inspect her surroundings "[a]s often as possible,"
but that on the day of the accident she did not perform any such
inspections because she was kept busy by a steady stream of
customers.
The district court met this facet of the plaintiff's
argument head-on. It supportably found that the cashier's primary
responsibility was to deal with customers and that it was "[n]ot
protocol for a cashier to step out from behind the cash register to
1
To be sure, the plaintiff testified that the shift manager
told her that he had seen the spilled liquid beforehand. But the
district court did not credit this testimony, and we cannot second-
guess the court's credibility determination. See, e.g., United
States v. Natanel, 938 F.2d 302, 313 (1st Cir. 1991) (emphasizing
that "the district court must be given wide rein to assess
. . . and judge the credibility of witnesses").
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check for hazards." Calderón-Ortega, 2013 WL 427209, at *5
(alteration in original) (internal quotation marks omitted). The
court also found as a fact that the primary responsibility for
detecting spills lay with the shift manager, see id.; and the
record discloses, without contradiction, that the shift manager
performed his routine inspections in a diligent and timely fashion
on the day of the incident, see id. at *7. Those inspections
revealed nothing amiss.
Second, the plaintiff maintains that the PX's protocol
for preventing and detecting spills was inadequate. Here, too, the
plaintiff's position is at odds with the record.
The district court found that the PX had a number of
relevant policies in place. Pertinently, the shift manager was
responsible for checking the premises every twenty to thirty
minutes in order to ensure that the floors were clear. If the
shift manager (or any other employee, for that matter) spotted a
spill, the person who made the discovery was enjoined to block off
the area immediately and either clean up the spill or call for
someone else to do so. The district court's finding that these
protocols were fully observed on the day of the incident is
supported by the record and is not clearly erroneous. See Cumpiano
v. Banco Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990)
(explaining that a finding is not clearly erroneous unless it gives
rise to an "unyielding belief that a mistake has been made").
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Relatedly, the plaintiff asserts that the cashier, not
the shift manager, should have inspected the area in front of the
cash register. This bald assertion is insufficient to establish
liability: speculation that different policies could have been put
into place, untethered to any proof of differing levels of
efficacy, is insufficient by itself to ground an inference of
negligence.2 See, e.g., Nieves-Romero, 715 F.3d at 379.
As a fallback, the plaintiff suggests that the spill may
have been caused by leakage from bags of ice that were on sale in
the PX. Even if this is so — and there is no real proof of it —
the PX had in place protocols, including signage, to prevent spills
from leaking bags of ice. The record contains nothing beyond
conjecture that suggests that these protocols were violated.
In all events, it was the plaintiff's burden to "place
the court in a position to make a clear and specific determination
on negligence." Cotto, 16 P.R. Offic. Trans. at 794. The district
court supportably found that the plaintiff failed to carry this
burden.3 See Calderón-Ortega, 2013 WL 427209, at *7. The
2
We note, moreover, that even if the cashier had periodically
inspected the area in front of the cash register, the record
contains no evidence sufficient to support a finding that the
hazardous condition about which the plaintiff complains would have
been discovered in time to prevent the accident. For aught that
appears, the spill may have happened only moments before the
plaintiff slipped.
3
The plaintiff assails the district court for its reference
to Ramos Rosado v. Wal-Mart Stores, Inc., 165 D.P.R. 510 (P.R.
2005). She correctly observes that this decision has no
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plaintiff has neither adduced any evidence that these inspection
procedures were violated nor developed any cogent explanation as to
why any other procedures should have been employed.
We add a coda. The plaintiff's arguments are couched in
strong language. She claims, for example, that "[o]n the record of
this case it is impossible to conclude that defendant met" the
applicable standard of care. Appellant's Br. at 4. But rhetoric
is not a surrogate for proof, and the plaintiff has offered no
proof — let alone preponderant proof — from which the district
court reasonably could have concluded that the spilled liquid was
on the floor for a sufficient interval to put the PX on
constructive notice of its presence. Given this dearth of
evidence, we cannot say that the district court erred in holding
that the plaintiff failed to prove her case. See, e.g., Mas v.
United States, 984 F.2d 527, 530 (1st Cir. 1993) (explaining that,
in a premises liability case, a plaintiff must affirmatively show
"that the defendant has either actual or constructive knowledge of
a dangerous condition").
precedential effect because it is only a judgment of the Puerto
Rico Supreme Court, not a full-dress opinion. See Baralt v.
Nationwide Mut. Ins. Co., 251 F.3d 10, 20 n.12 (1st Cir. 2001).
This attack misfires: even though a judgment of the Puerto Rico
Supreme Court (as opposed to an opinion) does not constitute
binding authority, its rationale nonetheless may have intrinsically
persuasive force and may be relied upon to that extent. See Rivera
Maldonado v. Estado Libre Asociado, 19 P.R. Offic. Trans. 88, 95
(P.R. 1987). We are confident that the court below embraced the
judgment in Ramos Rosado only for the persuasiveness of its
reasoning.
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We need go no further. Stripped of rhetorical
flourishes, the plaintiff's real complaint is that the district
court did not hold the defendant liable as an insurer of the
plaintiff's safety. But even though an owner or occupier of
commercial premises must exercise due care for the safety of its
patrons, it is not liable in tort without a showing of fault. See
Vázquez-Filippetti v. Banco Popular de P.R., 504 F.3d 43, 49 (1st
Cir. 2007).
Affirmed.
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