Ocasio Ocasio et al

Filing 38

OPINION AND ORDER denying 18 Co-defendants' motion for summary judgment. Signed by Judge Salvador E. Casellas on 12/21/2010. (PR) Modified on 12/22/2010 to add word "Opinion" (ni).

Ocasio-Ocasio et al v. Guadalupe-Hernandez et al.

Doc. 38

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I N THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF PUERTO RICO N E L L Y OCASIO-OCASIO, et al. Plaintiffs C iv il No. 09-1982 (SEC)

JESUS MANUEL GUADALUPEH E R N A N D E Z , et al. Defendants.

OPINION AND ORDER B e f o re the Court is a motion for summary judgment filed by co-defendants, Jesus Manuel G u a d e l u p e -H e rn a n d e z , Hogar Geobel Inc., and Universal Insurance Company (collectively, " D e f e n d a n ts " ) (Docket No. 18); the above-captioned plaintiffs' opposition thereto (Docket No. 2 8 ); and Defendants' reply (Docket No. 31). After reviewing the record and the applicable law, D e f e n d a n ts ' Summary Judgment Motion is DENIED. Procedural and Factual Background A s stated in a previous Opinion and Order (Docket No. 7), in 2003, Eduardo FloresG a rc i a fell to his death while working at a construction project in a building owned by G u a d a lu p e , and operated by Hogar Geobel.1 Nelly Ocasio, wife of the deceased, brought this d iv e rs ity action in her own capacity, and in representation of her minor children (collectively, " P la in tif f s " ) . Complaint, Docket No. 1.2 Plaintiffs allege that Defendants' negligence

Although not involved in these events, Universal apparently provided some type of casualty insurance to either Guadalupe or Hogar Geobel. Id. at ¶ 5. This case is the sequel to a controversy first brought before this district's attention in OcasioOcasio v. Hogar Geoble, Inc., Civ. No. 06-2041 (D.P.R. 2009). In that occasion, Judge Dominguez
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Dockets.Justia.com

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c o n trib u te d to Flores' death, "in particular by failing to provide [him] with adequate safety c lo th i n g , belts and hard hat; by not providing his work place with guardrails or safety nets or w a rn in g wires and by not adequately training him to deal with the hazards to which he was b e in g exposed." Id. at ¶ 12. On June 17, 2010, Defendants moved for summary judgment, arguing, in essence, that G u a d a lu p e had no legal duty towards Flores, because he was not Guadalupe's employee. Docket N o .1 8 . Plaintiffs demurred arguing the exact opposite--e.g., that Guadalupe "had a duty to act s in c e the moment [he]... knew of the existence of a hazardous condition within the premises." D o c k e t No. 28, p.2. With leave of Court, Defendants filed a reply, but it merely restates D e f e n d a n ts ' previous argument. Docket No. 31. The relevant uncontested facts are simple. Guadalupe hired a contractor to make im p ro v e m e n ts to a two-story building he owned and used to operate Hogar Geobel, Guadalupe's w h o lly owned corporation. Docket No. 18, ¶¶ 1- 4. The contractor in turn hired Flores to work o n the improvements. Id. at ¶ 5. Both Guadalupe and his contractor failed to obtain the requisite in su ra n c e under Puerto Rico's Workmen Compensation Act. Docket 28, ¶ 4. Before Flores' fall, he worked on the building's rooftop for at least two weeks, but never u s e d safety harnesses such as safety clothing, belts, or a hard hat. Docket 28, ¶¶ 2 & 3. Although Guadalupe and his contractor knew that Flores was not wearing safety equipment, they failed to require its use. Id. Moreover, neither Guadalupe nor his contractor installed guardrails or any o th e r safety system around the rooftop. Docket No. 18, ¶ 9. Flores eventually fell from the ro o f to p to the ground, dying on impact. Id. at ¶ 10.

dismissed the case without prejudice, which eventually allowed Plaintiffs to file this case. An Opinion and Order issued in this case on February 11, 2010 recounts the details. Docket No. 7.

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T h e Court may grant a motion for summary judgment when "the pleadings, depositions, a n s w e rs to interrogatories, and admissions on file, together with the affidavits, if any, show that th e re is no genuine issue as to any material fact and that the moving party is entitled to judgment a s a matter of law." Rule 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1 9 8 6 ); Ramírez Rodríguez v. Boehringer Ingelheim, 425 F.3d 67, 77 (1 st Cir. 2005). In

re a c h in g such a determination, the Court may not weigh the evidence. Casas Office Machs., In c . v. Mita Copystar Am., Inc., 42 F.3d 668 (1st Cir. 1994). At this stage, the court examines th e record in the "light most favorable to the nonmovant," and indulges all "reasonable in f e re n c e s in that party's favor." Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1 st C ir. 1994). O n c e the movant has averred that there is an absence of evidence to support the n o n m o v in g party's case, the burden shifts to the nonmovant to establish the existence of at least o n e fact in issue that is both genuine and material. Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990) (citations omitted). "A factual issue is `genuine' if `it may reasonably be resolved in favor of either party and, therefore, requires the finder of fact to make `a choice between the p a rtie s ' differing versions of the truth at trial.'" DePoutout v. Raffaelly, 424 F.3d 112, 116 (1 st C ir. 2005)(citing Garside, 895 F.2d at 48 (1st Cir. 1990)); see also SEC v. Ficken, 546 F.3d 45, 5 1 (1st Cir. 2008). I n order to defeat summary judgment, the opposing party may not rest on conclusory a lle g a tio n s , improbable inferences, and unsupported speculation. See Hadfield v. McDonough, 4 0 7 F.3d 11, 15 (1st Cir. 2005) (citing Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5 , 8 (1st Cir. 1990). Nor will "effusive rhetoric" and "optimistic surmise" suffice to establish a genuine issue of material fact. Cadle Co. v. Hayes, 116 F.3d 957, 960 (1 st Cir. 1997). Once th e party moving for summary judgment has established an absence of material facts in dispute,

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a n d that he or she is entitled to judgment as a matter of law, the "party opposing summary ju d g m e n t must present definite, competent evidence to rebut the motion." Méndez-Laboy v. A b b o t Lab., 424 F.3d 35, 37 (1st Cir. 2005) (citing Maldonado-Denis v. Castillo Rodríguez, 23 F .3 d 576, 581 (1st Cir. 1994)). " T h e non-movant must `produce specific facts, in suitable evidentiary form' sufficient to limn a trial-worthy issue. . . . Failure to do so allows the summary judgment engine to o p e ra te at full throttle." Id.; see also Kelly v. United States, 924 F.2d 355, 358 (1 st Cir. 1991) (w a rn in g that "the decision to sit idly by and allow the summary judgment proponent to c o n f ig u re the record is likely to prove fraught with consequence."); Medina-Muñoz, 896 F.2d a t 8 (citing Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir. 1989)) (holding that " [ t]h e evidence illustrating the factual controversy cannot be conjectural or problematic; it must h a v e substance in the sense that it limns differing versions of the truth which a fact finder must r e so lv e ." ) . Applicable Law and Analysis A federal court sitting in a diversity case must apply the substantive law of the forum w h e re the action is filed. Semtek Int'l. Inc. v. Lockheed Martin Corp., 531 U.S. 497, 498 (2 0 0 1 ). Therefore, the applicable law to this case is that of the Commonwealth of Puerto Rico. T h e Puerto Rico Civil Code establishes 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 A n n . tit. 31, § 5141. A claimant seeking relief under this article must establish "(1) a negligent a c t or omission, (2) damages, and (3) a causal relationship between them." Soc. Gananciales v. P a d in Co., Inc., 117 D.P.R. 94, 17 P.R. Offic. Trans. 111 (1986). Negligence by omission arises if two additional elements concur: (i) an omission is the p ro x im a te cause of the injury (the injury would have been avoided through an unperformed a c tio n ); and (ii) a legal duty called for the performance of the unperformed action. Id. "[T]he

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d u ty is defined by the general rule that one must act as would a prudent and reasonable person u n d e r similar circumstances." Vazquez-Filippetti v. Banco Polpular de Puerto Rico, 504 F.3d 4 3 , 49 (1st Cir, 2007) (citing Ortiz v. Levitt & Sons of P.R., Inc., 1 P.R. Offic. Trans. 407, 101 D .P .R . 290 (1973). For such duty to come into play, however, a fact finder must determine that th e so-called prudent and reasonable person would have foreseen the consequences of a given o m is s io n . Irvine v. Murad Skin Research Labs., Inc., 194 F.3d 313, 322 (1st Cir. 1999) (a p p lyin g Puerto Rico law). In other words, to prevail under a theory of negligence by omission, a claimant must prove, by a preponderance of the evidence, that the omission complained of c re a te d a foreseeable risk that eventually produced injury. Vazquez-Filippetti, 504 F.3d at 49. In the context of construction work, the aforementioned standard imposes on property o w n e rs certain minimum responsibilities. The Puerto Rico Supreme Court neatly summarized th e m in Pons-Anca v. Engebretson, 160 P.R.Dec. 347 (2003), a state tort-suit brought after a la d d e r workers were using to cut palm threes injured a passerby: "the employer responds for his o w n negligence when a given job entails risks that require especial precautions and the e m p lo ye r fails to require his contractor to take such precautions or fails to take them himself in s o m e form." Id. at 359 (translation provided). Accordingly, because the work in Pons-Anca in v o lv e d no risks requiring special precautionary measures, and because the property owner was u n a w a re of the workers' negligent handling of the ladder, the Supreme Court found that the p a s s e rb y had no cause of action against the property owner. Id. at 360-62. In this case, the Court need not venture far into the uncontested facts to deny Defendants' s u m m a ry judgment request; the facts that follow suffice. First, as stated above, it is undisputed th a t Flores used no safety equipment while working at Guadalupe's rooftop during the twow e e k period preceding his fall. Second, Guadulupe knew this but did nothing to stop it. Third, G u a d u lu p e installed no safety equipment around his rooftop, nor required his contractor to do s o . Finally, although not a fact stipulated by the parties, Guadalupe, as the construction site

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o w n e r, obviously had complete and final authority over the way his contractor, and ultimately F lo re s , carried out the work there. Under this factual scenario, it is beyond peradventure that a jury could find that a reasonable person on Guadalupe's shoes could have foreseen the risk o f Flores' fatal fall.3 The height of Guadalupe's two-story rooftop coupled with the particular ris k s involved in high-elevation construction work--circumstances calling for special p re c a u tio n a ry measures under the Pons-Anca analysis--buttresses the Court's conclusion. See a ls o Jewelers Mut. Ins. Co. v. N. Barquet, Inc., 410 F.3d 2, 15 (1st Cir. 2005) ("[T]he issue of n e g lig e n c e is generally left to the jury, even where there are no undisputed material facts, at le a s t in a tort context."). Accordingly, Defendants' Summary Judgment Motion is DENIED. I T IS SO ORDERED. In San Juan, Puerto Rico, this 21 day of December, 2010. s/ Salvador E. Casellas S a lv a d o r E. Casellas U .S . Senior District Judge

Of course, the same jury would have to consider whether Flores' conduct was a contributing factor to both the accident and its fatal result.

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