Baum-Holland v. Hilton El Con Management, LLC ( 2020 )

United States Court of Appeals
For the First Circuit
No. 18-2061
LAURA BAUM-HOLLAND; SARAH HOLLAND;
EMILY HOLLAND; JOSEPH HOLLAND,
Plaintiffs, Appellants,
v.
HILTON EL CON MANAGEMENT, LLC; HILTON EL CON OPERATOR, LLC;
LXR LUXURY RESORTS, INC.; EL CONQUISTADOR PARTNERSHIP L.P.,
S.E., d/b/a El Conquistador Resort;
ZURICH AMERICAN INSURANCE COMPANY,
Defendants, Appellees,
EL CONQUISTADOR GOLF RESORT & CASINO AND LAS CASITAS RESORT,
a Waldorf Astoria Resort; HILTON INC.; LA CASA DEL MAR, INC.;
INSURANCE COMPANY ABC; JOHN DOE 1; JOHN DOE 2; JOHN DOE 3,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Thompson, and Kayatta,
Circuit Judges.
Hatuey A. Infante-Castellanos, with whom Hatuey Infante Law
Offices, P.S.C., Freddie Pérez-González, Freddie Pérez-González &
Assoc., P.S.C., Toby B. Fullmer, and Toby B. Fullmer, L.L.C. were
on brief, for appellants.
Iván M. Fernández, with whom Law Office of Iván M. Fernández
was on brief, for appellee Zurich American Insurance Company.
Francisco E. Colón-Ramírez, with whom Colón Ramírez LLC was
on brief, for appellees Hilton El Con Management, LLC, Hilton El
Con Operator, LLC, and El Conquistador Partnership L.P., S.E.
June 30, 2020
-2-
TORRUELLA, Circuit Judge. This diversity case arises
from the unfortunate death of Dr. George Holland ("Dr. Holland")
while he was vacationing at El Conquistador Resort, a hotel located
in Fajardo, Puerto Rico. Dr. Holland's wife, Laura Baum-Holland
("Baum-Holland"),1 and their children, Sarah, Emily, and Joseph
Holland (collectively "Appellants") asserted a tort claim under
Article 1802 of the Puerto Rico Civil Code against El Conquistador
Partnership L.P., S.E. d/b/a El Conquistador Resort; its insurer,
Zurich American Insurance Company; Hilton El Con Management LLC;
Hilton El Con Operator LLC (collectively "Defendants-Appellees");
and LXR Luxury Resorts,2 stemming from Dr. Holland's death while
he was snorkeling close to Palomino, an island near the hotel.3
Defendants-Appellees moved for summary judgment, which the
district court granted, dismissing the complaint. Because we find
that there is insufficient evidence in the record to establish the
causation element of Appellants' tort claim, we affirm.
1 Baum-Holland is an obstetrician and gynecologist.
2 Although LXR Luxury Resorts is also a named defendant, it is a
trademark that El Conquistador Partnership L.P., S.E. licenses
from LXR Holdco, Inc., not an entity that may be sued.
3 The operative complaint also included Casa del Mar, Inc. as a
defendant but, as we will later explain, it is not a party on
appeal.
-3-
I. Background
A. Factual Background
On December 26, 2012, Dr. Holland, Appellants, and some
other relatives and friends arrived in Puerto Rico to celebrate a
birthday and New Year's Eve. They stayed at El Conquistador
Resort, a luxury hotel located on the coast of Fajardo,
Puerto Rico. At the relevant time, the hotel was owned and
operated by El Conquistador Partnership L.P., S.E. d/b/a
El Conquistador Resort. El Conquistador Resort provides ferry
transportation to a nearby island, Palomino, whose facilities are
managed by the hotel.
On January 1, 2013, Dr. Holland, his family, and some
friends, including Lawrence and Lisa Jassin,4 used the hotel's
transportation services to get to Palomino, where they planned to
spend the day at the beach. Dr. Holland was obese and suffered
from untreated hypertension.
Dr. Holland and his family rented snorkeling gear from
Casa Del Mar, Inc. ("Casa del Mar"), a concession stand on Palomino
Island.5 They rented four masks and four sets of fins. Casa del
Mar had signs indicating the availability of flotation belts.
4 The Jassins arrived in Puerto Rico on December 31, 2012.
5 The hotel shared in the profits as a result of its Concession
Agreement with Casa del Mar.
-4-
That day, it had approximately eight to fifteen flotation belts
that were in view to the public and available for rental for five
dollars each. Dr. Holland did not rent any flotation belts. Casa
del Mar rented two belts later in the day to other patrons. Other
than the flotation belts, the concession stand had no other safety
equipment.
Customers renting equipment from Casa del Mar were
required to read and sign a release form. Dr. Holland signed the
document before taking the equipment. The document stated:
Snorkeling Liability and Release Policy
(Please Read Below Carefully and Sign)
Medical History
I neither am nor have suffered from any mental and/or
physical disease, illness, or disability that would
render me unfit for snorkeling.
Release Liability
I fully understand that my snorkeling activity is at my
own risk, and hear by [sic] release La Casa del Mar Dive
Center, El Conquistador Resort, the subsidiaries, and
it's [sic] employees. I also understand that I will
hold them harmless from all claim, risk, damage, injury,
and liability arising from any injury or illness
sustained while engaged in snorkeling caused from any
negligence or default of any other snorkelers.
Equipment
I hear by [sic] accept the equipment as follows: I agree
that the use of such equipment is at my own risk. I
shall return the equipment in good working order, the
same way and complete as was received.
-5-
After renting the snorkeling equipment, Dr. Holland and
his party set out to snorkel between Palomino and Palominito, a
smaller island off the coast of Palomino. Dr. Holland had
snorkeled before. According to Mrs. Jassin, the water was choppy,
and there were strong currents that made them drift to the side,
but "[they] were okay" and did not notice any conditions that would
warrant them to change their plans and turn back to Palomino.6
Dr. Holland was swimming next to Mrs. Jassin, about twelve feet to
her left. At some point during the swim, Dr. Holland directed Ben
-- the Jassins's son -- to swim to the island ahead of him
(Palominito) to get Dr. Holland's son, Joseph. Ben was able to
do as instructed. Approximately halfway through his swim,
Dr. Holland stopped swimming and stared at Palominito. At that
time, according to Mrs. Jassin, Dr. Holland was treading water,
not thrashing, and appeared calm. He did not appear to be
drowning. Mrs. Jassin asked Dr. Holland if he was okay, but he
did not respond.
After noticing his unresponsiveness, the Jassins
approached Dr. Holland. Mrs. Jassin had lifeguard training, and
was trained in cardiopulmonary resuscitation ("CPR") and the use
6 Mrs. Jassin agreed that "there certainly wasn't anything in the
water that was overcoming any swimmer and causing them to go under"
and "[n]o one was getting tossed in the waves or getting thrown
under water, like crashing waves."
-6-
of automated external defibrillators ("AED"). Shortly after
Mrs. Jassin reached him, Dr. Holland began to foam at the mouth
and slumped in the water. The Jassins held Dr. Holland, which
prevented his head from going under water, and yelled for help.
Mrs. Jassin believed that Dr. Holland was having a heart attack.
Within five minutes, Edward Valentín, an employee of
Palomino Water Sports,7 arrived on a jet ski to aid Dr. Holland.
Mr. Valentín had previously worked in search and rescue missions
with the State Emergency Management Service in Puerto Rico and was
trained in life rescue techniques. Mr. Valentín signaled to the
shore for more assistance. At that point, John Rosado, co-owner
of Palomino Water Sports, and José Caraballo, another of his
employees who is also a certified lifeguard, got on a jet ski and
headed towards Dr. Holland. The group tried to get Dr. Holland
on the jet ski to no avail. At some point during their attempt,
Dr. Holland's head submerged.8
Then, a Hobie Cat arrived with people from Dr. Holland's
group, 9 and Dr. Holland was placed on it. Once on board,
7 Palomino Water Sports is another concession stand that rents
jet skis, kayaks, paddle boards, sailboats, Hobie Cats (small
sailing catamarans), beach toys, and other water sport equipment.
8 This was the first time that anyone saw Dr. Holland's head go
under water.
9 Baum-Holland's sister-in-law and nephew, as well as Joseph
-7-
Baum-Holland's sister-in-law, who is a physician, performed CPR on
Dr. Holland.10 Baum-Holland's brother, Dr. Richard Baum,11 who had
heard that Dr. Holland was in trouble, approached the Hobie Cat on
a jet ski and got on board. Once on board, he also helped with
the CPR, which was provided to Dr. Holland continuously until the
Hobie Cat arrived at the shore of Palomino within two to ten
minutes.12 According to Dr. Baum, Dr. Holland's pulse remained
faint and his breathing shallow until he was taken back to
Palomino, where Dr. Holland's respiration and pulse at some point
could no longer be detected.
Once back at Palomino, Dr. Holland was laid on the sand
and continued to receive CPR. Other hotel guests assisted
Dr. Holland. Dr. Melinda Armacost -- a dentist with CPR
certification -- and an ER nurse began chest compressions and mouth
to mouth respiration. While receiving CPR, Dr. Holland expelled
liquid (water and "some kind of chunk content"). Dr. John Ruge,
Holland were on the Hobie Cat.
10 Baum-Holland's sister-in-law, Dr. Kathe Baum, is an
interventional radiologist.
11 Dr. Richard Baum is also an interventional radiologist.
12 While Mr. Rosado testified that it took the Hobie Cat between
two to three minutes to get to the shore, Mrs. Jassin testified
that "[i]t seemed like forever[,] . . . maybe ten minutes, but it
seemed like a long time because [they] were worried about
[Dr. Holland]."
-8-
a neurosurgeon with twenty-seven years of experience, joined the
group in aiding Dr. Holland shortly thereafter and performed CPR.
Both Dr. Armacost and Dr. Ruge stated that, while lying on the
sand, Dr. Holland was "blue," "cyanotic," "pulseless, breathless,
[and] unresponsive."13
A hotel employee brought an AED to the scene 14 and
Dr. Ruge applied it on Dr. Holland,15 but the AED did not register
a pulse from Dr. Holland. 16 Dr. Ruge also administered an
epinephrine injection (EpiPen) to Dr. Holland's heart.
Dr. Holland was then placed on a stretcher and driven to
the dock on a golf cart. Dr. Ruge stayed with Dr. Holland on his
way to the dock. Once at the dock, Dr. Holland was transported
back to Fajardo on a U.S. Department of Homeland Security boat.17
13 Dr. Ruge thought Dr. Holland was already dead when he first
saw him.
14 The employee also brought a small oxygen tank with a mask.
15 Dr. Armacost testified that it took around ten minutes to get
the AED to Dr. Holland's location. Baum-Holland testified that
it took a "long time," although she does not claim that it took
more than ten minutes. This discrepancy, however, does not create
an issue of material fact.
16 Dr. Armacost did not detect a pulse on Dr. Holland either.
17 According to Mr. Rosado, Dr. Holland was transported back to
Fajardo on a Homeland Security boat instead of on the hotel ferry
because the former was faster than the latter. Approximately
thirty-five to forty minutes transpired between the time
Dr. Holland returned to Palomino on the Hobie Cat and when he was
-9-
He continued to receive CPR during the trip back to Fajardo, where
an ambulance was awaiting on shore. Dr. Holland was taken to a
hospital in Fajardo, where he was pronounced dead upon arrival.
Dr. Francisco Cortés, a forensic pathologist who worked
with the Puerto Rico Institute of Forensic Sciences, performed
Dr. Holland's autopsy and prepared an autopsy report. The report
noted that Dr. Holland was 5'10", was "obese," had an enlarged
heart, enlarged and fatty liver, atherosclerosis, and presented
pulmonary and sphenoid edema. The report listed Dr. Holland's
cause of death as "[a]sphyxia by drowning" with
"[a]rteriosclerotic coronary disease" as a "contributing factor."
During his deposition, Dr. Cortés explained the
information that was available to him at the time of the autopsy,
the autopsy process, and his findings. He stated that, on
January 2, 2013, an employee from the Puerto Rico Institute of
Forensic Sciences interviewed Baum-Holland, who provided
information about Dr. Holland's medical history. According to the
transcript of that interview, Baum-Holland reported that
Dr. Holland had high cholesterol levels and suffered from
hypertension but was not treated for either of these conditions.
placed on the Homeland Security boat.
-10-
Dr. Cortés further explained that he performed
Dr. Holland's autopsy on January 4, 2013. That day, Dr. Cortés
filled out a form for histology testing of heart, lung, and liver
tissue from Dr. Holland. In the "comment" section of that form,
Dr. Cortés wrote, "[w]hile he was snorkeling at the beach, he
suffered an infarct and died." According to Dr. Cortés, in writing
that statement, he "took into consideration that [Dr. Holland] was
snorkeling, . . . was obese, and . . . had untreated hypertension."
Similarly, in a form he submitted requesting toxicological
analysis of Dr. Holland's "blood; nasal swab; and diffused humor,"
Dr. Cortés identified Dr. Holland's "manner of death" as "pending"
and his "class" of death as "cardiac." In this same form,
Dr. Cortés wrote in the "circumstances of death" section that
"[w]hile [Dr. Holland] was snorkeling at the beach, he had an
infarct and died."
During his deposition, Dr. Cortés also expanded on his
findings from the autopsy report. He testified that "coloration
on [Dr. Holland's] face" "could be indicative of arrhythmia" or
"postmortem changes." He also testified that fluid in the
sphenoid sinus, such as that found during Dr. Holland's autopsy,
is typically found in people who have drowned, and that Dr. Holland
had to have been alive when the liquid entered his sphenoid sinuses
in order for him to have "breathe[d]" in the water.
-11-
In addition, Dr. Cortés explained that the "congested
mucosa" found in Dr. Holland's "epiglottis, trachea and larynx,"
was "evidence of a lack of oxygenation," which can be found in
different infarct cases as well as some drowning cases. He also
testified that "pulmonary edema" and "foaming at the mouth," both
exhibited by Dr. Holland, can be found in a person who has suffered
a heart failure or someone who has drowned.
Dr. Cortés also testified that Dr. Holland's "spleen
[was] increased in size," his lungs were "very increased in
weight," and he had a "markedly enlarged" and "fatty liver."
In explaining the autopsy report's finding regarding
Dr. Holland's heart, Dr. Cortés testified that Dr. Holland's
untreated "chronic hypertension" led him to have a "considerably"
larger than normal heart (weighting 560 grams), which could cause
arrhythmias. The heart also had "thickening of the left [blood]
ventricle" and "atherosclerotic changes." In sum, Dr. Cortés
characterized Dr. Holland's heart as a "sick heart."
Lastly, although in the autopsy report Dr. Cortés listed
"drowning" as Dr. Holland's "cause of death" and
"[a]rteriosclerotic coronary disease" as a contributing factor,
Dr. Cortés clarified in his deposition that, "by drawing the
conclusion of drowning, [he] did not rule out a heart attack"
"preceding the aspiration of the fluid in the sinus." In fact,
-12-
when asked to comment on the opinion from a cardiologist consulted
by El Conquistador to the effect that Dr. Holland suffered a heart
attack prior to aspirating water and drowning, 18 Dr. Cortés
responded that he could not "rule that out, because that's probably
what happened."
Appellants hired Dr. Miguel Canals as an expert in
oceanography. Dr. Canals wrote a report on the oceanographic
conditions on January 1st and was then deposed.
At his deposition, Dr. Canals acknowledged that, on the
morning of January 1, 2013, the National Weather Service ("NWS")
issued a bulletin stating that "dangerous surf zone conditions"
were expected for Puerto Rico and the Northern U.S. Virgin Islands.
Dr. Canals testified that, although the NWS estimated that waves
18 Specifically, Dr. Cortés was told that the cardiologist's
opinion was as follows:
[Dr. Holland] had a severe left ventricular
hypertrophy 2.4 centimeters, normal being less than one
centimeter. He went into heart failure most likely due
to elevating his heart rate and blood pressure from
snorkeling, and then developed diastolic dysfunction of
the heart muscle, leading to pulmonary edema.
Pulmonary edema, and foaming at the mouth,
developed before he was lifted onto the catamaran, and
before [the Jassins] saw any evidence of Dr. Holland's
submerging below the water.
Going into pulmonary edema certainly could affect
his responsiveness and cause an ischemic response. With
ischemia, or lack of blood and oxygen, he then developed
a fatal arrhythmia and died.
Hypertension, severe left ventricular hypertrophy,
and exercise such as snorkeling explained his death.
-13-
were breaking in the Atlantic Ocean between ten and fourteen feet
on January 1, 2013, his reconstruction of the oceanographic
conditions for the area where Dr. Holland was snorkeling indicated
that the waves between Palomino and Palominito were breaking at
only one to two feet. Dr. Canals explained that this discrepancy
was due to the Palomino area being a "sheltered environment"
surrounded by reefs and islands to the north of Palomino that
dissipate wave energy. He found that the conditions in the area
where Dr. Holland was snorkeling were "drastically different" from
the conditions described in the NWS bulletin because "the
[bulletin] does not attempt to estimate the wave conditions at
locations which are not exposed." The bulletin, in Dr. Canals's
opinion, "is meant for all of Puerto Rico" and does not analyze or
attempt to forecast the conditions at the exact location where
Dr. Holland was snorkeling. Dr. Canals determined that the winds
in the area where Dr. Holland was snorkeling should have been
between five and twelve miles per hour, and that the current speeds
near Palomino were somewhere between 0.6 to 0.9 knots.
B. Procedural History
On November 28, 2014, Appellants filed the initial
complaint. They amended their complaint three times, the last of
which they filed on January 9, 2017. On December 15, 2017,
Defendants-Appellees moved for summary judgment. On January 22,
-14-
2018, Appellants opposed summary judgment. Defendants-Appellees
replied on February 10, 2018.19
On September 30, 2018, the district court issued an
opinion and order granting Defendants-Appellees' motion for
summary judgment in its entirety. See Baum-Holland v.
El Conquistador P'ship, 336 F. Supp. 3d 6 (D.P.R. 2018). As an
initial matter, the district court found that Hilton El Con
Management LLC and Hilton El Con Operator LLC did not own, operate,
or provide services to the hotel during the relevant time period.
It also found that LXR Luxury Resorts is not an entity, but rather
a trademark owned by LXR Holdco, Inc. that El Conquistador
Partnership L.P., S.E. used as a licensee; and that in any event,
LXR Luxury Resorts did not own, operate, or provide services to
the hotel during the relevant time period. Appellants do not
challenge those findings or otherwise argue that summary judgment
should not have been entered as to those specific defendants.
Accordingly, Appellants have waived any challenge to the dismissal
of the complaint as to those defendants. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Our analysis on appeal
19 Casa del Mar also filed a motion for summary judgment, which
Appellants opposed. Soon thereafter, and before the district
court could rule on Casa del Mar's motion, Appellants settled all
their claims against Casa del Mar and the district court entered
partial judgment dismissing all claims against it. Casa del Mar
is not a party on appeal.
-15-
is thus limited to Appellants' claims against El Conquistador
Partnership L.P., S.E. d/b/a El Conquistador Resort and its
insurance company, Zurich American Insurance Company (collectively
"El Conquistador").
The district court granted summary judgment in favor of
El Conquistador on the grounds that Appellants had failed to meet
their burden of proof as to the breach of a duty of care and
causation elements of their negligence claim. The court rejected
Appellants' arguments that El Conquistador breached its duty of
care to Dr. Holland by failing to warn him of the allegedly
dangerous sea conditions, by not providing timely and appropriate
aid, and by failing to provide safety devices such as flotation
belts or vests, reflective mirrors, and whistles.
As to the alleged failure to warn, the court held that
Appellants did not "establish a real hazardous condition at sea"
about which El Conquistador should have warned Dr. Holland.
Specifically, the court found that the NWS bulletin on which
Appellants relied was not probative of their claim because the
evidence in the record showed that the conditions in the bulletin
were not consistent with the conditions in the specific area where
Dr. Holland was swimming (the stretch of water between Palomino
and Palominito), which is a "sheltered environment" due to "a
barrier of islands and reefs." Because foreseeability is
-16-
necessary to establish that a defendant breached its duty of care,
the court concluded that Appellants' "fail[ure] to provide
evidence that made foreseeable that Dr. Holland's event was bound
to occur" defeated their contention that El Conquistador had
breached its duty by failing to warn Dr. Holland. The court
further determined that Dr. Holland knowingly endangered himself
and assumed the risk when he decided to snorkel despite having
knowledge of his health conditions.
Regarding the alleged breach of a duty of care by failing
to provide safety devices such as flotation belts, reflective
mirrors, or whistles, the court concluded that Appellants had
failed to establish that El Conquistador had a duty to provide
such safety devices. Furthermore, the court found that although
flotation belts were available for rental at Casa del Mar,
Dr. Holland chose not to rent one.
In rejecting Appellants' argument that El Conquistador
breached its duty of care to Dr. Holland by failing to provide
timely and appropriate aid, the court found that the immediate aid
provided by Mrs. Jassin, who had lifeguard and CPR training and
who was only twelve feet away from Dr. Holland, was "much more
effective" than any help that could have been provided by
El Conquistador or an on-duty lifeguard given that Dr. Holland was
approximately 250 meters from the shore when the incident occurred.
-17-
Furthermore, the court found that Dr. Holland continuously
received CPR, and that El Conquistador had an AED available, which
a doctor with twenty-seven years of experience used to try to save
him.
As to the element of causation, the district court held
that Appellants had failed to establish causation because they did
not submit evidence from which a reasonable jury could conclude
that "Dr. Holland would have survived if first aid [had been]
provided by El Conquistador instead of Mrs. Jassin." Furthermore,
the court noted that Dr. Holland received CPR from various doctors,
that an AED was also used on him by a doctor, and that Appellants
had failed to present evidence that these "efforts were deficient."
Finally, the district court determined that the release
form that Dr. Holland signed when he rented the snorkeling gear
from Casa del Mar was enforceable and "released El Conquistador
from liability regarding the snorkeling activity [Dr. Holland] was
engaging in prior to his demise." Accordingly, the court
concluded that the release barred Appellants' claims.
Appellants timely appealed. They challenge the dismissal
of their Article 1802 tort claim on the merits as well as the
district court's finding that the release form signed by
Dr. Holland barred their tort claim.
-18-
II. Discussion
A. Standard of Review
We review a district court's grant of summary judgment
de novo, construing the record in the light most favorable to the
nonmovant and resolving all reasonable inferences in that party's
favor. Ocasio-Hernández v. Fortuño-Burset, 777 F.3d 1, 4 (1st
Cir. 2015); Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir.
1991) (quoting Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.
1990)). Summary judgment is appropriate when the moving party
shows that "there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law." Fed.
R. Civ. P. 56(a). A genuine dispute is "one that must be decided
at trial because the evidence, viewed in the light most flattering
to the nonmovant, would permit a rational factfinder to resolve
the issue in favor of either party." Medina-Muñoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) (citations omitted).
"Facts are material when they have the 'potential to affect the
outcome of the suit under the applicable law.'" Cherkaoui v. City
of Quincy, 877 F.3d 14, 23 (1st Cir. 2017) (quoting Sánchez v.
Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). The party opposing
summary judgment "bears 'the burden of producing specific facts
sufficient to deflect the swing of the summary judgment scythe.'"
Theidon v. Harvard Univ., 948 F.3d 477, 494 (1st Cir. 2020)
-19-
(quoting Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st
Cir. 2003)). "For this purpose, [it] cannot rely on 'conclusory
allegations, improbable inferences, acrimonious invective, or rank
speculation.'" Id. (quoting Ahern v. Shinseki, 629 F.3d 49, 54
(1st Cir. 2010)).
B. Applicable Law
Because this is a diversity case, we apply Puerto Rico's
substantive law. See Suero-Algarín v. CMT Hosp. HIMA San Pablo
Caguas, 957 F.3d 30, 39 (1st Cir. 2020) ("[F]ederal courts sitting
in diversity apply state substantive law." (quoting Gasperini v.
Ctr. for Humanities, Inc., 518 U.S. 415, 427 (1996))). Appellants
filed their suit under Article 1802 of the Puerto Rico Civil Code
-- Puerto Rico's general tort statute. Article 1802 provides that
"[a] person who by an act or omission causes damage to another
through fault or negligence shall be obliged to repair the damage
so done." P.R. Laws Ann. tit. 31, § 5141. It further provides
that "[c]oncurrent imprudence of the party aggrieved does not
exempt from liability, but entails a reduction of the indemnity."
Id.
"Negligence under Article 1802 is generally defined as
'the failure to exercise due diligence to avoid foreseeable
risks.'" Blomquist v. Horned Dorset Primavera, Inc., 925 F.3d
541, 546-47 (1st Cir. 2019) (quoting Woods-Leber v. Hyatt Hotels
-20-
of P.R., Inc., 124 F.3d 47, 50 (1st Cir. 1997)). To recover on a
negligence-based tort claim pursuant to Article 1802, a plaintiff
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,[20] and (4) a causal connection between the damage and
the tortious conduct." Id. at 547 (quoting Woods-Leber, 124 F.3d
at 50). Because the parties do not dispute that Appellants meet
the third element of their Article 1802 claim, we focus on the
remaining elements.
The first element, a "duty requiring the defendant to
conform to a certain standard of conduct," is commonly known as a
"duty of care." It refers to an "obligation to anticipate and
take measures against a danger that is reasonably foreseeable."
Woods-Leber v. Hyatt Hotels of P.R., Inc., 951 F. Supp. 1028, 1036
(D.P.R. 1996), aff'd, Woods-Leber, 124 F.3d 47. This duty of care
may arise: (1) by statute or regulation; (2) "as the result of a
special relationship between the parties that has arisen through
20 Some cases refer to this element as requiring proof of an
"injury." See, e.g., Vázquez-Filippetti v. Banco Popular de P.R.,
504 F.3d 43, 49 (1st Cir. 2007); Irvine v. Murad Skin Research
Labs., Inc., 194 F.3d 313, 321 (1st Cir. 1999) (using
"injuries/damages" interchangeably). The discrepancy is due to
varying translations from Spanish of the word "daño" -- derived
from the Spanish phrase, "[e]l que . . . causa daño a otro,"
included in the Spanish version of P.R. Laws Ann. tit. 31, § 5141.
See 31 L.P.R.A. § 5141 (Spanish version).
-21-
custom; or (3) as the result of a traditionally recognized duty of
care particular to the situation." De Jesús-Adorno v. Browning
Ferris Indus. of P.R., Inc., 160 F.3d 839, 842 (1st Cir. 1998).
We have held that, under Puerto Rico law, hotels have a
"heightened duty of care towards their guests." Blomquist, 925
F.3d at 547. In carrying out this duty of care, the hotel must
act as a "prudent and reasonable person under the circumstances."
Id. (quoting Vázquez-Filippetti v. Banco Popular de P.R., 504 F.3d
43, 49 (1st Cir. 2007)). However, hotels "are not absolute insurers
of their guests' well-being." Id. Rather, "even where [the hotel
has] a duty of care, the [c]ourt must still determine what degree
of care is required by considering the foreseeability of an injury,
the nature and magnitude of the injury, and what a reasonable and
prudent man would ha[ve] done under the same circumstances."
Woods-Leber, 951 F. Supp. at 1036.
Regarding the second element -- breach of a duty of
care -- because "a defendant only breaches [its] duty if [it] acted
(or failed to act) in a way that a reasonably prudent person would
foresee as creating undue risk," Vázquez-Filippetti, 504 F.3d at
49, the plaintiff needs to demonstrate that the injury was
"reasonably foreseeable," Woods-Leber, 124 F.3d at 50-51.
See Irvine v. Murad Skin Research Labs., Inc., 194 F.3d 313, 321-
22 (1st Cir. 1999) (noting that "[n]ot all actions or omissions
-22-
which result in injuries/damages will give rise to liability under
[A]rt. 1802"; rather, "liability will only arise if the damages
complained of were reasonably foreseeable to the defendant").
This inquiry is "case-specific and fact-dependent." Blomquist,
925 F.3d at 548.
Although "the requirement of foreseeability is not
limited to requiring that the precise risk or consequences"
suffered by the plaintiff be foreseen, those damages "must [still]
fall within the general class of consequences that in a normal
person's experience flow from such an act or omission." Woods-
Leber, 951 F. Supp. at 1036 (emphasis omitted) (quoting Pabón-
Escabí v. Axtmayer, 90 P.R. Dec. 20, 25 (1964), then citing Brau
del Toro, 1 Daños y Perjuicios Extracontractuales [Torts] 184–
185).
Under the fourth element of an Article 1802 claim, a
plaintiff must prove that the defendant's breach of its duty of
care was the proximate cause of the damage or injury suffered.
This causation analysis requires that two elements be met: (1) the
defendant's breach of its duty of care must be the actual cause of
the injury suffered by the plaintiff, and (2) the injury suffered
must have been reasonably foreseeable to the defendant.
See Vázquez-Filippetti, 504 F.3d at 49 n.6 (explaining how "[a]
defendant's actions may only be the proximate cause of a
-23-
plaintiff's injuries if they in fact caused the injuries and the
defendant could have reasonably foreseen that the injuries (or
related harms) would result from his actions"); Tormos–Arroyo v.
Dep't of Educ. of P.R., 140 P.R. Dec. 265, 275-76 (1996) (noting
that for purposes of Article 1802, there is a causal relationship
between an omission and an injury when the injury was reasonably
foreseeable and could have been avoided had the defendant performed
the omitted act). Foreseeability, in the context of causation,
cannot "be established through the simple fact that an accident
occurred." Vázquez-Filippetti, 504 F.3d at 53. Instead, the
foreseeability inquiry in this context is one of "probabilities,"
and not mere "possibilities." See id. at 54. An intervening
cause, defined as "a cause of injury that 'comes into active
operation in producing the result after the actor's negligent act
or omission has occurred,'" Widow of Andino v. P.R. Water Res.
Auth., 93 P.R.R. 168, 178 (1966), can break the chain of causality
if it is deemed to have been unforeseeable by the defendant.
See Malavé-Félix v. Volvo Car Corp., 946 F.2d 967, 972 (1st Cir.
1991).
C. Analysis
To survive summary judgment, Appellants need to point to
sufficient evidence in the record from which a reasonable jury
-24-
could rule in their favor as to each of the four elements of their
Article 1802 claim.
Appellants argue that El Conquistador breached three
different duties of care, which caused Dr. Holland's death by
drowning because of the ocean conditions on January 1, 2013, and
that there are several material facts in dispute as to
El Conquistador's breach of those duties, which make summary
judgment inappropriate.
First, Appellants argue that El Conquistador had a duty
to warn Dr. Holland about the ocean conditions on January 1st, and
that it breached that duty by allowing him to go in the water when,
instead, it "should have prohibited . . . Dr. Holland from engaging
in snorkeling or other water activities." To support that claim,
Appellants rely primarily on the NWS bulletin and Dr. Canals's
expert report and deposition testimony. According to Appellants,
there are material facts in dispute about the ocean conditions,
including the dangerousness of the currents, which bar summary
judgment.
Second, Appellants posit that El Conquistador had a duty
to aid Dr. Holland in such a moment of peril, and that it breached
this duty by not having: "a lifeguard on duty," the means to
quickly transport Dr. Holland to shore when he appeared to be in
distress, or an AED readily available when Dr. Holland was brought
-25-
ashore to Palomino. Appellants further argue that Dr. Holland
received assistance and CPR from "Good Samaritan hotel guests"
rather than from hotel staff. According to Appellants, disputes
over whether El Conquistador provided effective and timely
assistance to Dr. Holland -- including whether Mrs. Jassin properly
substituted for an on-staff lifeguard -- ought to prevent the entry
of summary judgment.
Third, Appellants argue that El Conquistador also had a
duty to provide safety gear, such as "flotation devices" (i.e.,
flotation belts and snorkeling vests), whistles, and reflective
mirrors. According to Appellants, the parties dispute whether
El Conquistador breached this duty, specifically whether Casa del
Mar had "flotation devices available" on January 1st and whether
Dr. Holland "decided not to rent them."
In response, El Conquistador disputes that it either had
any of these three duties of care or that it breached them.
Furthermore, El Conquistador argues that, even assuming it had
these duties of care and that Appellants could prove breach,
summary judgment is nevertheless still appropriate because
Appellants cannot prove causation.
Regarding the alleged duty to warn, El Conquistador
first disputes the admissibility of both the NWS bulletin and
Dr. Canals's expert report. It argues that the NWS bulletin was
-26-
not properly authenticated and that Dr. Canals's expert report was
"unsworn"; and therefore, both constitute inadmissible hearsay
evidence, which cannot be used to support Appellants' claim that
El Conquistador breached an alleged duty to warn. In the
alternative, El Conquistador argues that, even if admissible,
neither the NWS bulletin nor Dr. Canals's expert report support
Appellants' contention that it had a duty to warn Dr. Holland of
dangerous ocean conditions or that it breached such a duty.
Specifically, El Conquistador argues that the NWS bulletin is not
evidence that it was "put [] on notice" of dangerous conditions in
the area where Dr. Holland was snorkeling, between Palomino and
Palominito, because, as admitted by Appellants' own expert,
Dr. Canals, the bulletin applied to a "completely different
location[]." Appellees' Brief at 38. It argues that the evidence
in the record (including Dr. Canals's expert report and his
deposition testimony) shows that the conditions in the area between
Palomino and Palominito were, in Dr. Canals's words, "drastically
different" than those reported in the bulletin because that area
is surrounded by islands and reefs that create a sheltered
environment that reduces wave energy. It further argues that,
according to the evidence in the record, there were only "one to
two-foot waves" in the area where Dr. Holland was snorkeling, and
the winds were blowing at typical trade wind speeds. Finally,
-27-
El Conquistador posits that both the duty-of-care and breach-of-
duty elements require that the danger alleged by the plaintiff be
reasonably foreseeable, but here, a drowning event was not
foreseeable because it was not likely to occur. In support of
that contention, El Conquistador argues that over one million
El Conquistador guests visited Palomino between 2008 and 2012 and
none of them drowned.
Concerning the alleged duty to aid, El Conquistador
argues that Appellants have failed to prove that it had a "legal
duty to provide lifeguards" or "rescue boats at Palomino," and
that El Conquistador provided Dr. Holland with an AED within
"several minutes" of the incident, and an experienced neurosurgeon
used the device on Dr. Holland.
El Conquistador also refutes Appellants' contention that
it breached a duty to provide safety gear. First, it denies having
such a duty, arguing that no "rule, law, regulation or standard"
requires that it provide either flotation devices or "distress
signaling devices" such as reflective mirrors or whistles. In
support of its contention, El Conquistador points to the deposition
testimony of Appellants' "own liability expert," Alberto Martí, a
certified scuba diver who owns a concession stand that rents out
snorkeling gear in San Juan, Puerto Rico. Mr. Martí testified
that the use of flotation devices for snorkeling is optional and
-28-
people often do not rent them, and that nothing requires a
concession stand that rents snorkeling equipment to provide a
reflective mirror or a whistle to alert others in the event of
distress. Second, El Conquistador argues that, even assuming it
had a duty to provide flotation devices to snorkelers, it did not
breach that duty because Casa del Mar had between eight and fifteen
flotation belts available for rental when Dr. Holland got his
snorkeling equipment on January 1st. El Conquistador emphasizes
that, although aware that he could rent a flotation belt for only
five dollars, Dr. Holland still opted not to rent one.
Lastly, El Conquistador argues that Appellants cannot
prove the causation element required to survive summary judgment.
According to El Conquistador, Appellants have not pointed to any
evidence in the record establishing that "Dr. Holland more likely
than not perished because [El Conquistador] breached any standard
of care." It argues that the evidence shows that Dr. Holland
"probably" died because of a cardiorespiratory event that occurred
while he was in the water, due to an untreated heart condition.
Following this reasoning, El Conquistador insists that Dr. Holland
would have died due to his underlying health conditions even if he
had been wearing a flotation device because the evidence shows
that Dr. Holland started foaming at the mouth even before his head
ever submerged. El Conquistador further argues that there is no
-29-
proximate causation between El Conquistador's alleged breach of
the duty to aid and Dr. Holland's death because third parties
trained in the medical field and in life-saving techniques were
indisputably available "quickly" to aid Dr. Holland as soon as he
became unresponsive, to transport him to Palomino, and to provide
CPR and other assistance, yet, witnesses testified that he either
was already dead or died shortly after being brought ashore.
According to El Conquistador, this shows that having a rescue boat
or an on-duty lifeguard available would not have altered the
outcome and that no evidence in the record suggests otherwise. It
further argues that Appellants have offered no evidence to show
that, "more likely than not," providing an AED sooner would have
saved Dr. Holland's life.
To survive summary judgment, Appellants need to point to
sufficient evidence in the record that would allow a reasonable
jury to rule in their favor as to each of the four elements of an
Article 1802 claim. The parties do not dispute that the third
element is met: a damage or injury. Yet, as discussed above, the
parties vehemently dispute the first two elements, whether El
Conquistador had any one of the three alleged duties of care, and
if it did, whether it breached them, as well as the fourth element,
causation.
-30-
"[W]hether a duty exists is typically a legal question
for the court." Candelario del Moral v. UBS Fin. Servs. Inc. of
P.R., 699 F.3d 93, 100 (1st Cir. 2012) (citing Restatement (Second)
of Torts § 328B (noting that the court decides both "whether [the]
facts give rise to any legal duty on the part of the defendant"
and "the standard of conduct required of the defendant by his legal
duty")). Breach of duty, however, "involv[es] fluid concepts like
reasonableness and foreseeability" and thus "is usually an issue
for a factfinder." Id. "An exception exists where a reasonable
jury could only decide the breach-of-duty issue one way, in which
case a judge can resolve the matter on summary judgment." Id.
Here, we need not decide whether under Puerto Rico law
El Conquistador had the duties of care alleged by Appellants or,
if it indeed had those duties, whether there are genuine issues of
material facts regarding the alleged breach of those duties that
should be resolved at trial. That is so because, even assuming
that both issues are resolved in Appellants' favor, Appellants
have not pointed to evidence in the record from which a reasonable
jury could rule in their favor as to the causation element.
First, regarding the duty to aid and to provide safety
devices, we have carefully examined the extensive record and have
found no evidence from which a reasonable jury could conclude that
-31-
if El Conquistador had provided an on-duty lifeguard, 21 hotel
transportation to bring Dr. Holland back to Palomino when he became
unresponsive while in the water, 22 whistles and reflective
mirrors,23 and snorkeling vests (as opposed to flotation vests,
which undisputably were available to rent for five dollars),24 it
is more likely than not that Dr. Holland would have survived. Nor
have we found evidence in the record from which a reasonable jury
could find that it is more likely than not that Dr. Holland would
have survived if the hotel employees had brought the AED to
Dr. Holland sooner, see Room v. Caribe Hilton Hotel, 659 F.2d 5
21 Remember that Dr. Holland was first aided by Mrs. Jassin, who
was only twelve feet away from Dr. Holland at the time of the
incident, and who was a certified lifeguard trained in CPR and AED
techniques.
22 Instead of being transported in the Hobie Cat, which was sailed
by members of Dr. Holland's party.
23 Undisputed evidence shows that Mrs. Jassin was swimming
approximately twelve feet away from Dr. Holland when she noticed
that he was treading water and became unresponsive. There is no
evidence that Dr. Holland yelled for help or otherwise seemed in
distress or that he would have used reflective devices or whistles.
Nor is there evidence suggesting that these devices would have
resulted in a faster response.
24 Although Appellants argue in a conclusory manner that there is
a dispute regarding whether flotation belts were indeed available
for rental, they have not pointed to anything in the record to
dispute El Conquistador's well-supported statement that Casa del
Mar had approximately eight to fifteen flotation belts available
for rental when Dr. Holland got his snorkeling equipment and that
two of those belts were rented later in the day to other patrons.
-32-
(1st Cir. 1981) (requiring affirmative evidence that a delay to
treat a heart attack caused additional injury), if he had been
taken to the hospital sooner, see id., or if Dr. Holland had
received assistance exclusively from hotel staff rather than from
other hotel guests experienced in the medical field or with life-
saving training.25 In fact, when confronted with this lack of
evidence at oral argument, Appellants conceded that this evidence
was not in the record before us26 and that they did not know whether
the result would have been any different had El Conquistador done
everything that Appellants claim it should have done. Because
Appellants cannot point to any evidence in the record from which
a reasonable jury could conclude that, more likely than not,
Dr. Holland would have survived had El Conquistador not breached
its alleged duties to aid and to provide safety devices, they have
failed to establish causation with respect to these claims.
25 The evidence establishes that Dr. Holland quickly lost his
pulse on shore, and the AED would not have functioned without a
pulse. Further, two doctors and a nurse attended to Dr. Holland.
He had epinephrine administered to his heart, and he was
continuously receiving CPR.
26 Appellants stated that they intended to bring that evidence at
trial. Of course, that is too late. See Ricci v. Alt. Energy,
Inc., 211 F.3d 157, 161-62 (1st Cir. 2000) (explaining that if the
evidence in the summary judgment record is not enough to make an
issue upon which the jury may reasonably differ as to whether the
defendant's conduct caused plaintiff's injury, summary judgment is
appropriate).
-33-
See Tormos–Arroyo, 140 P.R. Dec. 265 (noting that, under Article
1802, a finding of causation requires that the injury be reasonably
foreseeable and that it could have been avoided had the defendant
performed the omitted act).
Second, the parties also dispute the causation element
of Appellants' duty-to-warn claim. Principally, they offer two
competing theories about Dr. Holland's cause of death. Appellants
argue that El Conquistador's alleged breach of its duty to warn
caused Dr. Holland to drown because of strong ocean currents. In
contrast, El Conquistador contends that Dr. Holland did not die of
drowning because of the ocean conditions but rather because he had
a heart attack due to his untreated heart conditions. It further
argues that this cardiac event was unforeseeable to
El Conquistador, especially because Dr. Holland had filled out a
form from Casa del Mar in which he stated that he did not suffer
from any "physical disease, illness, or disability that would
render [him] unfit for snorkeling." According to Appellants, this
dispute as to what caused Dr. Holland's death -- drowning because
of the ocean currents or a heart attack -- is a question for the
jury and, thus, summary judgment is inappropriate. We disagree.
"It is the role of the judge on summary judgment to
determine whether a particular inference is reasonable." Ricci
v. Alt. Energy, Inc., 211 F.3d 157, 161 (1st Cir. 2000). "Judgment
-34-
about whether an inference is reasonable is different from a 'judge
superimpos[ing] his own ideas of probability and likelihood (no
matter how reasonable those ideas may be).'" Id. (alteration in
original) (quoting Greenburg v. P.R. Mar. Shipping Auth., 835 F.2d
932, 936 (1st Cir. 1987)). "In fact, for negligence cases, . . .
[i]t is the function of the court to determine . . . whether the
evidence as to the facts makes an issue upon which the jury may
reasonably differ as to whether the conduct of the defendant has
been a substantial factor in causing the harm to the plaintiff."
Id. at 161-62 (third alteration in original) (quoting Restatement
(Second) of Torts § 434(1)(a)). Because a tort plaintiff has the
burden of showing that it was more likely than not that the
defendant's negligence caused the harm, "[a] mere possibility of
such causation is not enough; and when the matter remains one of
pure speculation and conjecture, or the probabilities are at best
evenly balanced," summary judgment is appropriate. Id. at 162
(emphasis in original) (quoting Restatement (Second) of Torts
§ 433B cmt. a).
Under Puerto Rico law, not everything that causes an
injury satisfies the causation element of an Article 1802 claim.
Rather, "[a] defendant's actions may only be the proximate cause
of a plaintiff's injuries if they in fact caused the injuries and
the defendant could have reasonably foreseen that the injuries (or
-35-
related harms) would result from his actions." Vázquez-
Filippetti, 504 F.3d at 49 n.6; see also Estremera v. Inmobiliaria
Rac, Inc., 9 P.R. Offic. Trans. 1150, 1156 (1980) (finding
causation element not met because mugging in a dark hallway was
not a foreseeable risk from a lack of lighting). Appellants did
not argue below or in their opening brief that a heart attack was
a foreseeable consequence of failing to warn of ocean currents.
Accordingly, any argument to that effect is waived. See P.R. Tel.
Co. v. T-Mobile P.R., 678 F.3d 49, 58 n.5 (1st Cir. 2012). 27
Therefore, Appellants can only defeat summary judgment if the
evidence in the record is sufficient to allow a reasonable jury to
conclude that, more likely than not, Dr. Holland drowned because
of strong currents and not because of a cardiac event due to an
underlying medical condition. See Ricci, 211 F.3d at 161-62
(finding "evenly matched" probabilities warrant granting a motion
27 Appellants argued for the first time in their reply brief, and
without any citation to the record, that "assuming that Dr. Holland
died of a heart attack, . . . a cardiac event . . . was due to the
strong currents and to the hotel's negligence in allowing
Dr. Holland to go swimming that day and/or its failure to warn
about the weather conditions." They further stated that they had
deposed Dr. Manuel Quiles, a cardiologist, and that, although
Dr. Quiles's deposition transcript was not included in the summary
judgment record, Appellants intended to have him testify at trial
in support of their position that Dr. Holland did not suffer "an
infarct." Yet, as we stated in P.R. Tel. Co., an "argument [ ]
raised for the first time on appeal without citation to any
pertinent authority . . . is both inadequately presented and
waived". 678 F.3d at 58 n.5.
-36-
for summary judgment). We do not think the evidence allows a jury
to make that conclusion.
Here, the evidence establishes that Dr. Holland had
several medical conditions for which he was not being treated. He
suffered from obesity and, according to his forensic pathologist,
had a "sick" and "considerably" enlarged heart, which can cause
arrhythmias. Dr. Holland also had untreated hypertension,
atherosclerosis, plaque, and a thickened blood ventricle.
Although Appellants rely on the pathology report prepared by
Dr. Cortés -- the forensic pathologist who performed Dr. Holland's
autopsy -- as evidence that Dr. Holland's death was caused by
drowning and not by a cardiac event, when asked to explain his
findings at his deposition, Dr. Cortés stated that a heart attack
was "probably" the precipitating cause for drowning. Furthermore,
according to Mrs. Jassin's deposition testimony, Dr. Holland did
not look like he was drowning, and she thought he was having a
heart attack. In addition, although Dr. Cortés testified that
water found in Dr. Holland's sphenoid sinus was consistent with
drowning, he could not determine at what point Dr. Holland
aspirated that water. The evidence in the record, however, shows
that Dr. Holland aspirated water during his rescue attempt, after
he was seen foaming at the mouth, and there is no evidence that
his head had submerged under water before he started foaming at
-37-
the mouth and before the Jassins aided him. Thus, any conclusion
that Dr. Holland aspirated water before he started foaming at the
mouth would be mere speculation.28 See Euromotion, Inc. v. BMW of
N. Am., Inc., 136 F.3d 866, 869 (1st Cir. 1998) (rejecting
speculation as a basis for denying summary judgment).
We thus conclude that, based on the record before us,
Appellants have not met their burden of showing that it is more
likely than not that El Conquistador's alleged failure to warn
Dr. Holland of the ocean conditions caused Dr. Holland's death by
drowning. See Ricci, 211 F.3d at 162 (explaining that "[a] mere
possibility [that the defendant's alleged negligence caused the
injury] is not enough; and when the matter remains one of pure
speculation and conjecture, or the probabilities are at best evenly
balanced," summary judgment is appropriate (emphasis in original)
(quoting Restatement (Second) of Torts § 433B cmt. a)).
Accordingly, Appellants are not entitled to try their claim at
trial and summary judgment was appropriate.29
28 This conclusion is also relevant to Dr. Cortés's testimony that
"pulmonary edema" and "foaming at the mouth," both of which
Dr. Holland exhibited, are symptoms commonly observed in someone
who has suffered a heart failure as well as someone who has
drowned. Since there is no evidence that Dr. Holland's head was
submerged in the water before he was seen foaming at the mouth,
Dr. Cortés's testimony does not support Appellants' contention
that it was more likely than not that Dr. Holland's death was
caused by the ocean currents rather than by a cardiac event.
29 We note that Appellants also challenge the district court's
-38-
III. Conclusion
For the foregoing reasons, we affirm the district
court's order.
Affirmed.
finding that the release form signed by Dr. Holland when he rented
the snorkeling equipment from Casa del Mar also barred their
Article 1802 claim. However, our conclusion that there is
insufficient evidence in the record from which a reasonable jury
can rule in Appellants' favor on the merits of their Article 1802
claim makes it unnecessary to further address this additional
argument. See Flaherty v. Entergy Nuclear Operations, Inc., 946
F.3d 41, 56 n.16 (1st Cir. 2019) (declining to address additional
arguments advanced by appellant because his appeal failed on other
grounds).
-39-