Perez Ortiz et al v. Colon Zambrana et al

Filing 140

OPINION AND ORDER GRANTING 53 MOTION for Partial Summary Judgment. The claims of Plaintiffs Maria Lancara-Maldonado, Blanca Cornier- Lancara, Namir Perez del Valle, Ayleen Perez del Valle, and Lucia Ortiz-Tirado are hereby DISMISSED WITH PREJUDICE . The parties will appear for a Settlement Conference to be held on September 22, 2011, at 1:30 P.M. Settlement Conference set for 9/22/2011 01:30 PM in Courtroom 7 before Judge Jose A Fuste. Signed by Judge Jose A Fuste on 9/12/2011.(mrj)

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UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO
FRANCISCO PEREZ ORTIZ, et al.,
Plaintiffs,

Civil No. 09-2261 (JAF)

v.
ALBERIC COLON ZAMBRANA, et al.,
Defendants.

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OPINION AND ORDER

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Plaintiffs, Francisco Pérez-Ortiz (Ortiz); Maria Lancara-Maldonado (Maldonado);1

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Maldonado’s children, Efraín O. Cornier-Lancara (Efraín) and Blanca Cornier-Lancara;

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Ortiz’s children, Namir Pérez del Valle, Ayleen Pérez del Valle,2 and Lucía Ortiz del Valle;

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bring this maritime tort action against defendants, Alberic Colón-Zambrana (Zambrana);

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Zambrana’s wife, Celeste Solís Aguiló; their conjugal partnership; and unknown insurance

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companies. (Docket No. 1.) This court has admiralty and maritime jurisdiction under 28

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U.S.C. § 1333.3 Defendants move for partial summary judgment under Federal Rule of Civil

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Although the complaint refers to Maldonado as Ortiz’s “common-law wife,” this purported
designation is of no moment. Puerto Rico does not recognize common-law marriages. AyusoMorales v. Secretary of Health and Human Services, 677 F.2d 146, 147.
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This Plaintiff, nineteen years old, is represented by her father, Francisco Pérez-Ortiz.

The statute provides: “[t]he district courts shall have original jurisdiction, exclusive of the
courts of the States, of ... [a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in
all cases other remedies to which they are otherwise entitled.” 28 U.S.C. § 1333(1).

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Civil No. 09-2261 (JAF)
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Procedure 56. (Docket No. 53.) Plaintiffs oppose (Docket No. 59), and Defendants respond

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(Docket No. 64).

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I.

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Factual Synopsis

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Unless otherwise noted, we derive the following factual summary from the complaint

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and the statements of facts submitted by the parties in their summary judgment and

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opposition motions. (Docket Nos. 1; 53; 54; 55; 59.)

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On July 24, 2009, while snorkeling, Plaintiffs Ortiz and Efraín were injured when hit

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by defendant Zambrana’s boat. (Docket No. 1 at 8.) The accident occurred in the territorial

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waters of Puerto Rico, which are navigable waters of the United States, near Dakiti Beach

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off the island of Culebra. (Docket No. 1 at 7.)

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Plaintiffs Ortiz and Efraín were snorkeling with a larger group that included Plaintiff

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Juan Carlos Cornier-Lancara, as well as Pedro Quiles (Ortiz’s nephew), José Gabriel Santos-

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Casanova, John Johnson, and Luis Méndez. (Docket No. 1 at 7.) This group of men had

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been snorkeling for approximately two hours before the accident happened. (Id.) Earlier that

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morning, the group of divers had separated from a larger group of family and friends.

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(Docket No. 1 at 6.) This other group, which included Plaintiff María Lancara-Maldonado,

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remained on boats anchored on Dakiti Beach. (Id.) The divers planned to return to the boats

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later in the day, after doing some harpoon fishing and snorkeling in the nearby reefs. (Docket

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No. 1 at 7.)

Civil No. 09-2261 (JAF)

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At around noon that day, defendant’s boat, the Tiara, struck Plaintiffs Ortiz and

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Efraín. (Docket No. 1 at 8.) The impact of the boat’s propeller caused serious injuries to

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Ortiz. (Id.) At the hospital after the accident, Ortiz’s left leg was amputated above the knee.

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(Docket No. 1 at 13.) Ortiz also required fourteen pints of blood transfusion and ten skin

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staples on his right leg. (Id.) After undergoing surgery for his injuries, Ortiz remained in a

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coma for four days. (Docket No. 1 at 14.) Ortiz also required a second surgery to finish the

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amputation, as well as several therapy sessions in a hyper-baric chamber to treat his wounds.

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(Id.) He suffered from “phantom pain” in the place his injured leg used to be. (Docket No. 1

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at 13.)

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Today, as a result of the injury, Ortiz continues to suffer emotional distress, anxiety,

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pain, and suffering. (Docket No. 1 at 15.) He has insomnia and nightmares and was treated

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for depression. (Id.) The injury has prevented Ortiz from being able to work at his previous

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job as an independent contractor. (Id.)

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In the collision, Efraín also suffered minor bruises and abrasions from the propeller,
which collided with his swimming fin and broke it in two. (Docket No. 1 at 13.)

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Plaintiffs allege that at the time of the accident, defendant was operating his boat in

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a negligent manner. (Docket No. 1 at 18.) Plaintiffs further allege defendant denied them

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assistance after the accident. (Docket No. 1 at 19.) Defendants counter that Plaintiffs failed

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to comply with local regulations requiring a diver’s flag. (Docket No. 52 at 2.)

Civil No. 09-2261 (JAF)

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Plaintiffs seek $15,100,000 to compensate Ortiz for his physical and emotional

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injuries, past and future medical expenses, loss of income, lost future earnings, and hedonic

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damages. They also seek $2,100,000 for the injuries, medical expenses and diminished

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earning capacity of Plaintiff Efraín. María Lancara-Maldonado, referred to in the complaint

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as Ortiz’s “common-law wife,” seeks $1,550,000 for emotional distress, medical expenses

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for psychiatric treatment, and diminished earning capacity. Her children, Blanca Cornier-

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Lancara and Juan Carlos Cornier-Lancara, seek $500,000 each for emotional distress caused

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by the accident. Namir Pérez del Valle, Ayleen Pérez del Valle, and Lucía Ortiz-Tirado, each

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children of Francisco Pérez-Ortiz, seek $500,000 for their emotional distress. Ayleen Pérez

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del Valle seeks an additional $250,000 for medical expenses associated with mental health

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services she required after the accident.

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Defendants move for partial summary judgment. (Docket No. 53.) Defendants seek

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dismissal of the emotional distress claim raised by Plaintiffs María Lancara-Maldonado,

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Blanca Cornier-Lancara, Namir Pérez del Valle, Ayleen Pérez del Valle, and Lucía Ortiz-

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Tirado. (Id.) Defendants argue that these Plaintiffs have failed to state a claim upon which

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relief can be granted under federal maritime law. (Id.) Plaintiff opposes (Docket No. 59),

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and Defendants respond (Docket No. 64).

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Civil No. 09-2261 (JAF)
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II.

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Summary Judgment Under Rule 56

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We must grant a motion for summary judgment “if the pleadings, the discovery and

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disclosure materials on file, and any affidavits show that there is no genuine dispute as to any

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material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

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P. 56(a). A factual dispute is “genuine” if it could be resolved in favor of either party and

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“material” if it potentially affects the outcome of the case. Calero-Cerezo v. U.S. Dep’t of

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Justice, 355 F.3d 6, 19 (1st Cir. 2004).

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The movant carries the burden of establishing that there is no genuine dispute as to

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any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The movant may

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satisfy this burden by “citing to particular parts of materials in the record, including

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depositions, documents, electronically stored information, affidavits or declarations, . . . or

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other materials.” Fed. R. Civ. P. 56(c)(1)(A). Furthermore, to establish the absence of a

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genuine dispute of material fact, the movant need not produce evidence but may instead point

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to a lack of evidence supporting the nonmovant’s case. See Fed. R. Civ. P. 56(c)(1)(B); see

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also Celotex, 477 U.S. at 325. “Once the moving party has made a preliminary showing that

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no genuine [dispute] of material fact exists, the nonmovant must produce specific facts, in

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suitable evidentiary form, to establish the presence of a trialworthy [dispute].” Clifford v.

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Barnhart, 449 F.3d 276, 280 (1st Cir. 2006) (internal quotation marks omitted); see also Fed.

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R. Civ. P. 56(c)(1).

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Civil No. 09-2261 (JAF)
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In evaluating a motion for summary judgment, we must view the record in the light

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most favorable to the nonmovant. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133,

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150–51 (2000). “The court need consider only the cited materials, but it may consider other

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materials in the record.” Fed. R. Civ. P. 56(c)(3).

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III.

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Analysis

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Defendants move for partial summary judgment. (Docket No. 53.) Defendants

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maintain that under federal maritime law, negligent infliction of emotional distress is the

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only cognizable claim presented by Plaintiffs María Lancara-Maldonado, Blanca Cornier-

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Lancara, Namir Pérez del Valle, Ayleen Pérez del Valle, and Lucía Ortiz-Tirado. (Docket

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No. 54.) Because these Plaintiffs were not present at the scene of the accident, defendants

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argue, these Plaintiffs cannot recover for negligent infliction of emotional distress. (Id.)

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Plaintiffs dispute defendants’ characterization of federal maritime law. (Docket No. 59.)

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Plaintiffs further argue that even if their claim is barred by federal maritime law, they should

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be allowed to recover under Article 1802 of Puerto Rico’s Civil Code, 31 L.P.R.A. § 5141.

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(Id.) For the reasons described below, we find for defendants.

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A.

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This case is a maritime tort within the definition provided by the United States Court

Negligent Infliction of Emotional Distress

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of Appeals for the First Circuit, Medina v. Perez, 733 F.2d 170, 171 (1 st Cir. 1984).

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well-settled that when admiralty jurisdiction is invoked, substantive maritime law applies.

It is

Civil No. 09-2261 (JAF)

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East River S.S. Corp. V. Transamerica Delaval, Inc., 476 U.S. 858, 864, 106 S.Ct. 2295,

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90 L.Ed.2d 865 (1986). This principle serves to promote uniformity in admiralty actions.

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See Tucker v. Fearn, 333 F.3d 1216, 1224 (11 th Cir. 2003).

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While the First Circuit has not expressly decided whether negligent infliction of

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emotional distress is a cause of action in federal maritime law, Ellenwood v. Exxon

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Shipping Co., 984 F.2d 1270 (1st Cir. 1993), other circuits have held that it is, see, e.g., Chan

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v. Society Expeditions, Inc., 39 F.3d 1398 (9th Cir. 1994). In Chan, the Ninth Circuit held

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that “claims for emotional distress are cognizable under admiralty law,” id. at 1409, citing

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Consolidated Rail Corp. V. Gottshall, 512 U.S. 532, 550, 114 S.Ct. 2396, 129 L.Ed.2d 427

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(1994). We have also held that negligent infliction of emotional distress is a cognizable

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claim under federal maritime law. Peemoller Sultan v. Pleasure Craft Contender, 139

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F.Supp.2d 230; Kunkel v. Motor Sport, Inc., 349 F.Supp.2d 198. Because negligent

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infliction of emotional distress is a cognizable claim under admiralty law, we must apply the

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rules of admiralty. Id.

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In Peemoller, we announced the three standards governing liability for negligent

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infliction of emotional distress: (1) the “physical injury or impact” test; (2) the “zone of

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danger” standard; and (3) the “bystander proximity” test. Id. at 235. Under the “physical

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injury or impact” test, a Plaintiff may only recover if he or she experiences physical contact

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or injury in addition to emotional distress. Id. To recover under the “zone of danger” test,

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a Plaintiff must be at risk of physical injury while also witnessing the endangerment of

Civil No. 09-2261 (JAF)

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another. Id. Under the “bystander proximity” theory, a Plaintiff may only recover if he or

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she: (1) is physically close to scene of the accident; (2) directly witnesses the incident; and

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(3) is a close relation of the victim. Id.

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To recover under any of these tests, a Plaintiff must be close enough to the scene to

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witness the accident. Defendants argue that recovery is, therefore, barred for Plaintiffs

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María Lancara-Maldonado, Blanca Cornier-Lancara, Namir Pérez del Valle, Ayleen Pérez

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del Valle, and Lucía Ortiz-Tirado, because none were at the scene of the accident. (Docket

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No. 54.) Defendant has submitted a statement of uncontested facts showing that Plaintiff

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María Lancara-Maldonado was on the boat at the time of the accident and did not witness

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the collision. (Docket No. 55 at Exh. 1-6.) The statement also shows that Plaintiff Blanca

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Cornier-Lancara was at Icacos Beach in Fajardo (Docket No. 55 at Exh. 7-10). The

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remaining Plaintiffs Namir Pérez del Valle, Ayleen Pérez del Valle, and Lucía Ortiz-Tirado

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were on the main island of Puerto Rico. (Docket No 55 at Exh. 11-18.) According to the

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statement, then, none of these Plaintiffs witnessed the collision that injured Plaintiffs Ortiz

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and Efraín. (Docket No. 55 at 13.) Plaintiffs have deemed and accepted all portions of the

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Defendant’s statement of uncontested facts as true. (Docket No. 59 at 2.)

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Therefore, under federal maritime law, Plaintiffs cannot recover for negligent

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infliction of emotional distress. The “physical injury or impact,” “zone of danger,” and

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“bystander proximity” theories all bar recovery for María Lancara-Maldonado, Blanca

Civil No. 09-2261 (JAF)

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Cornier-Lancara, Namir Pérez del Valle, Ayleen Pérez del Valle, and Lucía Ortiz-Tirado.

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Because none of these Plaintiffs witnessed the collision, none may recover under this theory.

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B.

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Plaintiffs argue, in the alternative, that they are entitled to recover under Article 1802

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of Puerto Rico’s Civil Code, 31 L.P.R.A. § 5141. (Docket Nos. 1, 59.) Under Puerto Rico

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law, Plaintiffs contend, a plaintiff need not witness the scene of the accident to recover.

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(Docket No. 59.) The statute provides: “A person who by an act of omission causes damage

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to another through fault of negligence shall be obliged to repair the damage so done.”

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Plaintiffs ask the court to invoke supplementary jurisdiction under 28 U.S.C. § 1367 and

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Article 1802 of Puerto Rico’s Civil Code, 31 L.P.R.A. § 5141.

apply Puerto Rico law. Id.

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Plaintiffs’ request misapprehends the nature of federal maritime law. Because this

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case is a maritime tort, it falls within the jurisdiction of 28 U.S.C. § 1333, not 28 U.S.C.

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§1367. When admiralty jurisdiction is invoked, substantive maritime law applies. East

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River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864, 106 S.Ct. 2295, 90

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L.Ed.2d 865 (1986). Negligent infliction of emotional distress is a cognizable claim under

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federal maritime law. See Chan, 39 F.3d 1398 ; Peemoller, 139 F.Supp.2d 230. Therefore,

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we must apply the rules of admiralty. Id.

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The United States Supreme Court has held that the exercise of admiralty jurisdiction

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“does not result in automatic displacement of state law.” Yamaha Motor Corp., U.S.A. v.

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Calhoun, 516 U.S. 199, 206, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996). “Even though general

Civil No. 09-2261 (JAF)

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maritime law principles govern liability in admiralty action, state law may supplement

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damages.” Id. at 216. In Peemoller, we acknowledged that “federal maritime law may be

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supplemented by state law in very discrete and exceptional procedural or remedial

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circumstances.” 139 F.Supp.2d. at 237.

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As we said in Peemoller, the application of state law 4 to maritime claims has been

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carefully circumscribed by the Supreme Court: “The extent to which state law may be used

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to remedy maritime injuries is constrained by a so-called ‘reverse-Erie’ doctrine which

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requires that the substantive remedies afforded by the States conform to governing federal

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maritime standards.” Id. at 236, quoting Offshore Logistics, Inc. V. Tallentire, 477 U.S.

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207, 223, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986) (internal citations omitted). We also noted

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that state legislation affecting maritime activity is invalid if it “interferes with the proper

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harmony and uniformity of that law in its international and interstate relations.” Id. at 236,

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quoting S. Pac. Co. V. Jensen, 244 U.S. 205, 216, 37 S.Ct. 524, 61 L.Ed. 1086 (1917).

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In other words, while state law can be used to supplement damages, it cannot

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establish liability when federal admiralty law specifically precludes it. See IMTT-Gretna

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v. Robert E. Lee SS, 993 F.2d 1193, 1195 (5th Cir. 1993). This is because “the ‘uniformity’

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that is fundamental in maritime law has to do with the bases of liability, not with differing

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elements of damages that may be recoverable in differing circumstances with differing

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Although Puerto Rico is a territory (Commonwealth) and not a state, we use the term “state
law” to refer to Puerto Rico’s legislation throughout this opinion.

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Civil No. 09-2261 (JAF)
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classes of beneficiaries.” See Dennis v. Central Gulf S.S. Corp., 453 F.2d 137 (5 th Cir.

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1972).

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In this case, federal admiralty law prohibits the Plaintiffs from recovering for

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negligent infliction of emotional distress, because they did not witness the accident.

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Plaintiffs cannot then appeal to Puerto Rico law to circumvent this rule. See Peemoller, 139

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F.Supp.2d 230; Kunkel, 349 F.Supp.2d 198. This holding is consistent with our past

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decisions that applied federal maritime law in the territorial waters of Puerto Rico, which

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are navigable waters of the United States and, therefore, subject to admiralty and maritime

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uniform federal law and jurisdiction. See Santiago v. Sea-Land Serv., Inc., 366 F.Supp.

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1309, 1313 (D.P.R.1973) (“The requirement of uniformity . . . prescribes that the federal

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admiralty courts should proceed according to the national Maritime Law and limit their

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power to borrow local law by way of supplementation or modification thereof.”); Fireman’s

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Ins. Co. v. Gulf P.R. Lines, Inc., 349 F.Supp. 952, 962 (D.P.R.1972) (finding Puerto Rico

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Civil Code inapplicable in light of uniform federal maritime law); P.R. v. Sea-Land Serv.,

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Inc., 349 F.Supp. 964, 968, 971 (D.P.R.1970) (applying federal maritime statute despite

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conflicting Puerto Rico local legislation).

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IV.

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Conclusion

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In accordance with the foregoing, we GRANT Defendants’ motion for partial

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summary judgment (Docket No. 53).

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Civil No. 09-2261 (JAF)
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Consequently, the claims of Plaintiffs María Lancara-Maldonado, Blanca Cornier-

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Lancara, Namir Pérez del Valle, Ayleen Pérez del Valle, and Lucía Ortiz-Tirado are hereby

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DISMISSED WITH PREJUDICE.

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We require the parties to appear for a Settlement Conference to be held on
September 22, 2011, at 1:30 P.M.

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IT IS SO ORDERED.

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San Juan, Puerto Rico, this 9 th day of September, 2011.

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s/José Antonio Fusté
JOSE ANTONIO FUSTE
United States District Judge