Lawes et al v. Q.B Construction, et al

Filing 474

OPINION AND ORDER granting in part and denying in part 270 Motion for Summary Judgment. Signed by Judge Daniel R. Dominguez on 1/22/2016. (JM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
GRANDVILL D. LAWES,
Plaintiff,
v.
MUNICIPALITY OF SAN JUAN, ET
AL.,

Civ. No. 12-1473 (DRD)

Defendants and Third-Party
Plaintiffs,
v.
PUERTO RICO ELECTRIC AND POWER
AUTHORITY, INC., ET AL.,
Third-Party Plaintiffs and
Third-Party Defendants.
OPINION AND ORDER
Grandvill Lawes (hereinafter, “Plaintiff” or “Lawes”) filed
the

instant

action

against

the

Municipality

of

San

Juan

(“Municipality”) and MAPFRE PRAICO Insurance Company (“MAPFRE”)
alleging negligence under Article 1802 of the Puerto Rico Civil
Code, 31 L.P.R.A. ' 5141 (AArt. 1802@). Plaintiff asserts that he
was severely injured when he was struck by an automobile while
crossing the street in San Juan, Puerto Rico. Plaintiff avers
that

the

negligence

of

the

named

defendants

was

actual

and

proximate cause of his injuries. Pending before the Court is
Defendant Municipality of San Juan and MAPFRE PRAICO Insurance

1

Company’s Motion for Summary Judgment (Docket No. 270). For the
reasons elucidated below, the Court hereby GRANTS in part and
DENIES in part Defendant’s Motion for Summary Judgment.
I. RELEVANT FACTUAL & PROCEDURAL HISTORY
On October 22, 2011, the vessel where Plaintiff was working
as a merchant marine was docked at Pier 9 near the Old San Juan
section of San Juan, Puerto Rico. See Docket No. 257.

In the

evening, Plaintiff walked up Fernandez Juncos Avenue into Old
San Juan to have dinner. Because the sidewalk on the south side
of Fernandez Juncos Avenue was blocked due to construction on
the Bahia Urbana Project, Plaintiff crossed to the north side
the avenue mid-block, away from the crosswalk. Id.
When

returning

from

dinner,

Plaintiff

alleges

that

he

“retraced his steps back to the ship.” Id. at 5. When crossing
the avenue at mid-block, Plaintiff was struck by a 2006 Toyota
4-Runner driven by Third-Party Defendant Rafaela Riviere-Andino
(“Riviere-Andino”). Id. As a result of the accident, Plaintiff
claims he has lost his ability to walk, has suffered traumatic
brain injury as well as numerous internal injuries, and will
require lifelong treatment. Id.
On

June

14,

2012,

Plaintiff

filed

suit

against

Q.B.

Construction, Inc. (“Q.B.”); Constructora Santiago Corp. II1; the
1

On August 20, 2012, the Court dismissed all claims against Constructora
Santiago Corp. II (Docket No. 29) pursuant to Plaintiff’s Notice of Voluntary
Dismissal without Prejudice as to Constructora Santiago II (Docket No. 28).
2

Municipality;
MAPFRE.

See

the

Puerto

Docket

No.

Rico
1.

Ports

Authority

Plaintiff’s

(“PRPA”);

complaint

alleges

and
the

defendants are liable to him under Article 1802 of the Puerto
Rico Civil Code, 31 L.P.R.A. ' 5141. Plaintiff argues that he was
injured when struck by an automobile while crossing the street
in

San

Juan,

Puerto

Rico,

and

Defendant’s

negligence

the

proximate cause of his injuries. Id. On June 22, 2012, Plaintiff
filed an Amended Complaint (Docket No. 4).
On September 5, 2012, Defendant PRPA filed a

Motion to

Dismiss under Federal Rule of Civil Procedure 12(b)(6) (Docket
No. 30). PRPA argued they were immune from suit pursuant to
Eleventh Amendment to the United States Constitution. Id. On
January

11,

2013,

Plaintiff

filed

a

Motion

to

Dismiss

with

Prejudice as to Puerto Rico Ports Authority (Docket No. 62).
Accordingly, on January 22, 2013, the Court entered a Partial
Judgment dismissing the claims against PRPA.
On

November

21,

2012,

Defendant

Q.B.

filed

an

Amended

Third-Party Complaint against Riviere-Andino (“Riviere-Andino”)
and Cooperativa de Seguros Multiples (“Seguros Multiples”), as
her insurer (Docket No. 54).

Q.B. alleges Riviere-Andino is

liable to Plaintiff and, in the event Q.B. is ordered to pay
damages, Riviere-Andino and Seguros Multiples should be ordered
to indemnify Q.B. Id.

3

On November 23, 2012, Third-Party Defendant Riviere-Andino
filed

her

Answer

to

the

Third

Party

Complaint

and

First

Counterclaim Against Q.B. Construction, Inc. (Docket No. 56).
Riviere-Andino

also

filed

a

counterclaim

against

Third-Party

Plaintiff Q.B., averring that Q.B. is the liable party in the
instant case and, in the event Riviere-Andino is ordered to pay
damages, Defendant Q.B. should be ordered to indemnify her. Id.
On February 7, 2013, co-Third-Party Defendant Seguros Multiples
restated

Riviere-Andino’s

arguments

and

counterclaims

against

Defendant Q.B. in their own Answer to the Third Party Complaint
and

Counterclaim

Against

Q.B.

Construction,

Inc.

(Docket

No.

67).
On May 6, 2013, Riviere-Andino and Seguros Multiples filed
a Crossclaim against MAPFRE and the Municipality (Docket No.
76). Therein, Riviere-Andino and Seguros Multiples argued that
the Municipality is liable to Plaintiff and moved the Court to
order indemnification by the Municipality and/or MAPFRE of any
damages

paid

to

Plaintiff

by

Riviere-Andino

and/or

Seguros

Multiples. Id.
On November 26, 2013, Defendant Q.B. filed a Third-Party
Complaint against Miguel A. Bonilla, Inc. (“MAB”), Puerto Rico
Electric and Power Authority (“PREPA”), CSA Group, Inc. (“CSA”),
and their respective unnamed insurers (Docket No. 90). Defendant
argued that the Third Party Defendants, and their insurers, were
4

jointly

liable

to

Plaintiff

and

moved

the

Court

to

order

indemnification by MAB, PREPA, CSA, and their insurers, of any
damages paid to Plaintiff by Q.B. Id.
On

March

4,

Complaint

naming

Assurance

2014,

Company

Plaintiff

Triple-S

filed

Propiedad

(“Integrand”),

a

second

(“Triple-S”),

and

ACE

Amended
Integrand

Insurance

Company

(“ACE”) as defendants (Docket No. 119). Plaintiff included these
three corporations because they insured for co-Defendant Q.B. at
the time of the accident. Id.
On May 7, 2014, Defendant ACE answered Plaintiff’s second
Amended

Complaint

and

filed

a

crossclaim

against

Third-Party

Defendant MAB (Docket No. 134). ACE claimed it was MAB that was
responsible for “ensuring that all worked performed as part of
the Bahia Urbana project was performed in compliance with all
safety regulations, and consequently, any damages suffered by
[P]laintiff were also caused at least in part by the fault or
negligence of [MAB].” Id. at 6.
On May 23, 2014, Defendant Integrand filed a crossclaim
against
PREPA,

Third-Party

Defendants

Riviere-Andino,

and

CSA,

any

Seguros

unnamed

Multiples,

insurers

(Docket

MAB,
No.

136). Through its crossclaim, Integrand sought indemnification
from the named parties in the event Integrand is ordered to pay
any

damages

to

Plaintiff.

Id.

Riviere-Andino

counter-claimed

against Integrand on June 21, 2014, seeking indemnification from
5

Integrand

in

the

event

she

was

ordered

to

pay

damages

to

Plaintiff (Docket No. 159).
On September 30, 2014, Third-Party Defendant PREPA filed a
Motion

to

pending

Dismiss

against

September

29,

Third

them

Party

were

2015,

the

Complaint

time-barred
Court

denied

claiming

(Docket

the

No.

Third-Party

claims

206).

On

Defendant

PREPA’s Motion to Dismiss. See Docket No. 434. The Court held
that

the

statute

of

limitations

pertaining

to

any

claims

Plaintiff might have had against the Third-Party Defendants had
no effect on the Third-Party Plaintiffs’ rights to implead, as
the right of contribution did not accrue until the original
defendants are ordered to compensate Plaintiff for his injuries.
See Id.
On February 4, 2015, the Court granted Plaintiff’s Motion
for Leave to File Third Amended Complaint (Docket No. 155). See
Docket No. 255. On February 6, 2015, Plaintiff filed his Third
Amended Complaint including Third-Party Defendant CSA as one of
the listed defendants (Docket No. 257).
On March 23, 2015, the Municipality and MAPFRE joined in
the

instant

Motion

for

Summary

Judgment

(Docket

No.

270).

Therein, the Municipality argued that Plaintiff failed to comply
with the notice requirement of Article 15.003 of the Autonomous
Municipality Law of Puerto Rico and, additionally, that there is
no

admissible

evidence

to

establish
6

liability

against

the

Municipality and MAPFRE under Art. 1802. See Id. Accordingly,
the Municipality asked the Court to dismiss all claims brought
against it, including the crossclaim at Docket No. 76, for lack
of subject matter jurisdiction. Id.
On May 5, 2015, Plaintiff filed his opposition to MAPFRE
and the Municipality’s Motion for Summary Judgment (Docket No.
318). Plaintiff argued he complied with the notice requirement
imposed by local law by notifying the Municipality within thirty
days after he was physically well enough to provide adequate
notice.

Id.

Furthermore,

Plaintiff

also

argued

that

the

Municipality had an absolute, undelegable duty to keep their
sidewalks safe and they breached that duty. Id.
On May 22, 2015, Defendants MAPFRE and the Municipality
joined in replying to Plaintiff’s opposition (Docket No. 354).
Defendants
evidence

argued
to

Municipality

that

Plaintiff

demonstrate
pursuant

to

his
the

had

proffered

incapacity
statute.

to
Id.

inadmissible
notify

the

Furthermore,

Defendants argued that Plaintiff had not cited any case law to
support his assertion that the Municipality’s duty to maintain
their sidewalks safe is “undelegable.” Id.
On March 23, 2015, Third-Party Defendant MAB filed a Motion
for Summary Judgment (Docket No. 275). MAB argues, in essence,
that the Third-Party Plaintiffs have not provided evidence of

7

MAB’s negligence and that the Third-Party Complaint is timebarred. Id.
On May 18, 2015, Defendant Integrand filed its Response in
Opposition to MAB’s Motion for Summary Judgment, joined by coDefendant

Q.B.

(Docket

No.

345).

In

its

response,

Integrand

argued that the Third-Party Complaint was timely filed and that
MAB may be found jointly liable at trial if Plaintiff is able to
prove liability against primary defendant, Q.B. See Id.
On March 23, 2015, Defendant CSA filed a Motion for Summary
Judgment
grounds

(Docket
that

No.

276).

Plaintiff

CSA

assumed

moved
the

for

risk

dismissal

of

injury

on

the

when

he

crossed the Fernandez Juncos Avenue at mid-block and, thus, the
Third-Party Complaint and the Third Amended Complaint should be
dismissed as to CSA. Id.
On May 1, 2015, Plaintiff filed his Opposition to CSA’s
Motion for Summary Judgment (Docket No. 313). Plaintiff avers
that CSA designed a deficient Management of Traffic (“MOT”) Plan
that created a mid-block crossing for pedestrians walking from
the

northern

sidewalk

to

the

southern

sidewalk

on

Fernandez

Juncos Avenue. Id. Plaintiff further argues that CSA’s deficient
design

of

the

MOT

plan

is

a

proximate

cause

of

Plaintiff’s

injuries. Id.
On May 16, 2015, co-Defendants Q.B. and Integrand filed
their joint Opposition to CSA Group’s Summary Judgment (Docket
8

No. 341). In their opposition they argue that there is a genuine
issue of fact as to CSA’s possible liability stemming from its
deficient MOT plan. Id.
On March 23, 2015, ACE, Triple-S, and Integrand jointly
filed a Motion for Summary Judgment on behalf of its insured,
Defendant Q.B. Construction, Inc. (Docket No. 277). The three
co-Defendants moved for summary judgment on the grounds that
Plaintiff

was

negligent

in

crossing

the

street

away

from

a

crosswalk and, thus, their actions were not the proximate cause
of Plaintiff’s injuries. Id.
On May 6, 2015, Plaintiff filed his Opposition to ACE’s
Motion for Summary Judgment (Docket No. 325). Plaintiff argued
that Puerto Rico Law does not require him to cross the avenue at
an intersection. Id. Plaintiff also claimed that the issue of
liability must ultimately be decided by the jury. Id. Finally,
Plaintiff
barrier

on

injuries.
On
Motion
summary,

argues

that

the

Q.B.,

the

is

sidewalk,

as

installer

responsible

of

for

the

cement

Plaintiff’s

Id.

March
for

24,

2015,

Partial

PREPA

moved

Third-Party

Summary
to

Defendant

Judgment

dismiss

the

(Docket

PREPA
No.

Third-Party

filed
279).

a
In

Complaint

because there is no evidence on the record that suggests PREPA
was negligent in maintaining the lampposts near the scene of the

9

accident nor is there evidence that any negligence by PREPA was
the proximate cause of Plaintiff’s injury. Id.
On May 8, 2015,

Defendant

Q.B. filed its

Opposition to

PREPA’s Motion for Partial Summary Judgment (Docket No. 330).
Q.B.’s

opposition

possibility

that

is

grounded

PREPA

on

could

the

be

idea

held

that

liable

there

is

directly

a
to

Plaintiff, or to Defendant Q.B., and, thus, Summary Judgment is
improper at this juncture. Id.
II. STANDARD OF REVIEW FOR SUMMARY JUDGMENT MOTIONS
Rule 56 of the Federal Rules of Civil Procedure provides
that summary judgment should be entered where “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.”
56(c);
(1986).

see

Celotex

Corp.

v.

Catrett,

477

FED. R. CIV. P.

U.S.

317,

324-325

Pursuant to the clear language of the rule, the moving

party bears a two-fold burden: it must show that there is “no
genuine issue as to any material facts;” as well as that it is
“entitled to judgment as a matter of law.”

Veda-Rodriguez v.

Puerto Rico, 110 F.3d 174, 179 (1st Cir. 1997).

A fact is

“material” where it has the potential to change the outcome of
the suit under governing law.

See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986).
10

A fact is “genuine” where a

reasonable jury could return a verdict for the nonmoving party
based on the evidence.

Id.

Thus, it is well settled that “the

mere existence of a scintilla of evidence” is insufficient to
defeat a properly supported motion for summary judgment.

Id.

After the moving party meets this burden, the onus shifts
to the non-moving party to show that there still exists “a trial
worthy issue as to some material facts.”

Cortes-Irizarry v.

Corporacion Insular, 11 F.3d 184, 187 (1st Cir. 1997).
At the summary judgment stage, the trial court examines the
record

“in

the

light

most

flattering

to

the

non-movant

and

indulges in all reasonable references in that party’s favor.
Only if the record, viewed in this manner and without regard to
credibility determinations, reveals no genuine issue as to any
material fact may the court enter summary judgment.”
v. Hayes, 116 F.3d 957, 959-60 (1st Cir. 1997).

Cadle Co.

“Credibility

determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not
those of a judge.”

Reeves v. Sanderson Plumbing Prod., 530 U.S.

133, 150 (2000)(quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250-51, 106 S.Ct. 2505 (1986)).

Summary judgment is

inappropriate where there are issues of motive and intent as
related to material facts.

See Poller v. Columbia Broad. Sys.,

369 U.S. 470, 473, 82 S.Ct. 486 (1962)(summary judgment is to be
issued “sparingly” in litigation “where motive and intent play
11

leading roles”); see also Pullman-Standard v. Swint, 456 U.S.
273, 288, 102 S.Ct. 1781 (1982)(“findings as to design, motive
and intent with which men act [are] peculiarly factual issues
for the trier of fact.”);

see also

Dominguez-Cruz v. Suttle

Caribe, Inc., 202 F.3d 424, 433 (1st Cir. 2000)(finding that
“determinations of motive and intent . . . are questions better
suited for the jury”).

“As we have said many times, summary

judgment is not a substitute for the trial of disputed factual
issues.”
178-179

Rodríguez v. Municipality of San Juan, 659 F.3d 168,
(1st

Cir.

2011)(internal

quotations

and

citations

omitted).

Conversely, summary judgment is appropriate where the

nonmoving

party

improbable

rests

inferences

solely
and

upon

“conclusory

unsupported

allegations,

speculation.”

Ayala-

Gerena v. Bristol Myers-Squibb Co., 85 F.3d 86, 95 (1st Cir.
1996).

However,

while

the

Court

“draw[s]

all

reasonable

inferences in the light most favorable to [the non-moving party]
. . . we will not draw unreasonable inferences or credit bald
assertions,

empty

conclusions

or

rank

conjecture.”

Vera

v.

McHugh, 622 F.3d 17, 26 (1st Cir. 2010)(internal quotations and
citation omitted).
to

conclusory

Moreover, “we afford no evidentiary weight
allegations,

empty

rhetoric,

unsupported

speculation, or evidence which, in the aggregate, is less than
significantly

probative.”

Tropigas

12

De

P.R.

v.

Certain

Underwriters at Lloyd’s of London, 637 F.3d 53, 56 (1st Cir.
2011)(internal citations omitted).
Further, the Court will not consider hearsay statements or
allegations presented by parties that do not properly provide
specific reference to the record. See D.P.R. CIV. R. 56(e)(“The
[C]ourt may disregard any statement of fact not supported by a
specific citation to the record material properly considered on
summary judgment.
search

or

The [C]ourt shall have no independent duty to

consider

referenced.”);

any

part

of

the

record

not

specifically

see also Morales v. A.C. Orssleff’s EFTF, 246

F.3d 32, 33 (1st Cir. 2001)(finding that, where a party fails to
buttress factual issues with proper record citations, judgment
against that party may be appropriate);
Inc.,

895

F.2d

46,

50

(1st

Cir.

Garside v. Osco Drug,

1990)(“Hearsay

evidence,

inadmissible at trial, cannot be considered on a motion for
summary judgment.”).2
If a defendant fails to file an opposition to the motion
for summary judgment, the district court may consider the motion
as unopposed and disregard any subsequently filed opposition.
Velez v. Awning Windows, Inc., 375 F.3d 35, 41 (1st Cir. 2004).
2

D.P.R. CIV. R. 56(b), often referred to as the anti-ferret rule, requires the
party moving for summary judgment to submit a “separate, short, and concise
statement of material facts, set forth in numbered paragraphs, a s to which
the moving party contends there is no genuine issue of material fact.”
Similarly, the non-moving party is required to submit a counter-statement
“admit[ing], deny[ing] or qualify[ing] the facts by reference to each
numbered paragraph in the moving party’s statement of material facts and
unless a fact is admitted, shall support each denial or qualification by
record citation.” D.P.R. CIV. R. 56(c).
13

Furthermore,
uncontested

the

district

statements

of

court
fact.

must
Id.

at

take

as

41-42;

true

see

any

D.P.R.R.

311.12; see Morales, 246 F.3d at 33 (“This case is a lesson in
summary judgment practice …. [P]arties ignore [Rule 311.12] at
their

own

disputed

peril,
facts,

and

…

failure

embroidered

with

to

present

specific

a

statement

citations

to

of
the

record, justifies deeming the facts presented in the movant’s
statement of undisputed facts admitted.”)(internal citations and
quotations omitted); see also Euromodas, Inc. v. Zanella , Ltd.,
368 F.3d 11, 14-15 (1st Cir. 2004). However, this does not mean
that summary judgment will be automatically entered on behalf of
the moving party, as the court “still has the obligation to test
the undisputed facts in the crucible of the applicable law in
order to ascertain whether judgment is warranted.” See Velez,
375 F.3d at 42.
III. LEGAL ANALYSIS
i.

Notice Pursuant to 21 L.P.R.A. § 4703

Defendant Municipality of San Juan and MAPFRE’s Motion for
Summary Judgment (Docket No. 270) requests the dismissal with
prejudice of the claims against the Municipality arguing “lack
of

jurisdiction

over

the

subject

matter”

due

to

Plaintiff's

failure to provide adequate notice to the Municipality of San
Juan as required by 21 L.P.R.A. § 4703.

14

Title 21 of the Laws of Puerto Rico Annotated states in
section 4703 that:
Any person who has a claim of any kind against a
municipality for personal or property damages due to
the fault or negligence of the municipality shall so
notify the Mayor, in writing, stating clearly and
concisely the date, place, cause and general nature of
the damages suffered. Said notification shall also
specify the amount of monetary compensation or the
kind of relief appropriate for the damages suffered,
the names and addresses of his/her witnesses, the
claimant's address and, in cases of personal damages,
the place where medical treatment was first received.
(a) Form and time period to serve notification. Said
notification shall be presented to the Mayor either by
certified mail or personally, or in any other
authentic manner recognized in law.
Said written notification shall be presented to the
Mayor within ninety (90) days of date on which the
claimant learned of the damages claimed. If the
claimant is mentally or physically unable to make said
notification within the term established above, he/she
shall not be bound to comply with it, but must made
said notification within thirty (30) days of the date
on which the disability ends.
(b) Jurisdictional requirement. No legal action of any
kind shall be initiated against a municipality for
damages due to negligence unless written notification
is made in the form, manner and terms provided in this
subtitle.
As a threshold matter, the Court must emphasize that the
requirements imposed by Section 4703 do not benefit MAPFRE, as
the

Municipality’s

insurer.

See

García

v.

Northern

Assurance

Co., 92 D.P.R. 245, 256 (1965) (holding that notification was
not required as a condition to initiate an action against the
insurance

company

of

the

municipality).
15

With

respect

to

the

Municipality, however, notification pursuant to 21 L.P.R.A. §
4703 is a condition to the Court acquiring jurisdiction over the
case. Therefore, the Municipality is correct in asserting that,
if it was improperly notified of the suit, the claims against
the

Municipality

Superior,

88

must

be

D.P.R.

dismissed.

491,

498

See

(1963);

Mangual

v.

Tribunal

García

v.

Northern

Assurance Co., 92 D.P.R. 245, 256 (1965); and López v. Autoridad
de Carreteras, 93 JTS 64 (1993).
The purpose driving the special notification requirement on
possible claims against a Municipality under Art. 1802 is: “1)
to

give

to

these

political

agencies

an

opportunity

to

investigate the facts giving rise to the claim; 2) to discourage
unfounded

claims;

3)

to

facilitate

prompt

settlement;

4)

to

permit the immediate inspection of the scene of the accident
before conditions change; 5) to discover the name of the persons
who have knowledge of the facts and to interview them while
their

recollection

is

more

trustworthy;

6)

to

notify

the

municipal authorities of the existence of the claim to enable
them to make the necessary reserve in the annual budget; and 7)
to

minimize

intervention

the

amount

offering

of

proper

the

damages

medical

sustained

treatment

and

by

prompt

providing

hospitalization facilities to the injured party.” Mangual supra,
at 494; Rivera v. Municipio de Cayey, 99 D.P.R. 196, 197 (1970);

16

López, 93 J.T.S. 64; Colón v. Ramírez, 913 F.Supp. 112, 121
(D.P.R.1996).
The Court must emphasize that the notice requirement is not
absolute. The statute itself contains an exception to the notice
requirement for persons whose physical condition is in such a
dire state that they are unable to notify the Municipality in a
timely fashion. See 21 L.P.R.A. § 4703(a). For this category of
claimants, the statute allows notification to a Municipality to
be made within thirty days from the end of their disability. Id.
Plaintiff bears the burden of producing enough evidence to
sustain an allegation of disability under 21 L.P.R.A. § 4703(a).
See

Berrios

Plaintiff’s

Roman
ground

v.
for

E.L.A.,

171

opposing

D.P.R.

the

549,

564

(2007).

Municipality’s

instant

motion is that he was “physically and mentally unable to notify
the Municipality of a potential claim within ninety (90) days of
the accident.” Docket No. 318 at 2.
In

order

to

sustain

his

allegation,

Plaintiff

provided

medical progress notes where the note-taking physician comments
on Plaintiff’s condition (Docket No. 321, Exhibits 2 and 3).
Based

on

these

notes,

Plaintiff

contends

he

was

physically

unable to notify the Municipality until June 28, 2012, when he
notified Defendants “via service of the complaint.”3 Docket No.
3

See Passalacqua v. Municipio de San Juan, 116 D.P.R. 618, 632 (1985) (filing
a lawsuit and serving process within the applicable notice period satisfies
the statutory requirement).
17

318 at 2.

Defendant argues that the medical notes constitute

inadmissible

hearsay

because

Plaintiff

has

not

revealed

“the

author of these medical notes, nor authenticated [them] with an
affidavit or [sworn statement].” Docket No. 354 at 2. As such,
Defendant argues that Plaintiff has failed to provide admissible
evidence of when his disability ended and the statutory thirtyday notification period began. Id.
Federal Rule of Civil Procedure 56(e) requires that all
documentary evidence supporting or opposing summary judgment be
properly

authenticated.

See

Fed.R.Civ.P.

56(e).

Rule

56(e),

thus, requires that the medical notes submitted by Plaintiff be
accompanied

with

an

“affidavit

.

.

.

made

on

personal

knowledge, [setting] forth facts that would be admissible in
evidence, and show affirmatively that the affiant is competent
to

testify

to

the

matters

stated

therein.”

Toledo, 215 F.3d 124, 131 (1st Cir. 2000).
medical

records

attached

to

an

constitute
affidavit

inadmissible

authenticating

See

Carmona

v.

More specifically,
hearsay
its

when

contents

not
by

a

custodian or other qualified person. See Fed. R. Evid. 803(6)
and Fed. R. Evid. 902(11); see also Garside v. Osco Drug, Inc.,
895 F.2d 46, 50 (1st Cir. 1990)(“Hearsay evidence, inadmissible
at

trial,

judgment.”).

cannot

be

Plaintiff

considered
has

not

18

on

a

provided

motion
the

for

Court

summary
with

an

affidavit

that

satisfies

the

authentication

requirements

of

Federal Rule of Evidence 803(6)(d) nor has Plaintiff responded
to Defendant’s allegation of inadmissibility at Docket No. 354.
Accordingly, the Court has no choice but to deem as inadmissible
Exhibits 2 and 3 at Docket No. 321.
As the Court alluded to earlier, evidence of Plaintiff’s
disability and its duration is crucial to the instant motion.
However, because of the inadmissibility of the medical notes,
the

record

before

the

Court

is

devoid

of

any

evidence

of

Plaintiff’s inability to notify the Municipality pursuant to 21
L.P.R.A.
effects

§
of

4703(a).

Without

Plaintiff’s

admissible

disability,

the

evidence
Court

as

to

the

cannot

find

in

evidence

on

favor of Plaintiff on the adequate notice issue.
The

Court,

upon

finding

no

admissible

the

record to shed light on the severity and duration of Plaintiff’s
disability, need not go further in its analysis. Accordingly,
Defendant Municipality of San Juan’s Motion for Summary Judgment
(Docket No. 270) must be GRANTED as to Plaintiff’s failure to
adequately notify the Municipality of San Juan pursuant to

21

L.P.R.A. § 4703.
ii.
Defendants

Claims against MAPFRE

correctly

note

that

the

90-day

notice

requirement imposed on potential plaintiffs by 21 L.P.R.A. §
4703(a) does not apply to a municipality’s insurance carrier.
19

See García, 92 D.P.R. at 256 (notification within the 90-day
statutory period is not required to initiate an action against
the

insurance

company

of

the

municipality).

Thus,

dismissal

against the Municipality for failure to comply with the notice
statute does not dismiss against MAPFRE.
MAPFRE’s

liability

to

Plaintiff

in

the

instant

case

is

governed by its insurance contract with the Municipality. See
Lopez & Medina Corp. v. Marsh USA, Inc., 667 F.3d 58, 64 (1st
Cir. 2012). Defendants argue that MAPRFE’s liability is only
triggered if the Municipality is “legally obligated to pay.”
Docket

No.

270

at

6,

n.

7.

The

Court

first

consulted

the

Insurance Code of Puerto Rico in an attempt to interpret MAPFRE
and the Municipality’s contractual relationship. See 26 L.P.R.A.
§ 101; see also Jiménez v. Triple S. Inc., 154 F.Supp.2d 236,
238 (D.P.R.2001). Article 11.250 of the Insurance Code of Puerto
Rico instructs courts to construe insurance contracts according
to their particular terms and conditions. 26 L.P.R.A. § 1125.
However,

the

Court’s

has

no

knowledge

of

the

terms

of

the

insurance contract because the record contains no evidence or
testimony about the contractual terms and conditions.
Finding

no

evidence

to

the

contrary,

the

Court

cannot

assume that the contract terms provide for MAPFRE’s liability to
begin only when the Municipality is “legally obligated to pay”.
Therefore,

the

Plaintiff’s

claims
20

against

MAPFRE

cannot

be

dismissed and MAPFRE must respond on behalf of its insured if
the Municipality is found liable to Plaintiff under Art. 1802.
See

Garcia,

provides

92

D.P.R.

claimants

tortfeasor’s

at

with

insurer

a

for

255

(holding

direct
the

that

cause

of

negligence

Puerto
action

of

its

Rico

law

against

a

insured).

Accordingly, the Court hereby DENIES Defendant MAPFRE’s Motion
for Summary Judgment (Docket No. 270) on the claim that it is no
longer liable because the claims against its insured have been
dismissed.4
iii. The Municipality and its Insurer’s Potential Negligence
under Art. 1802
Article

1802

states

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.”
Ann. § 5141.

31 P.R. Laws

Under Article 1802, a plaintiff suing for personal

injuries must plead, and ultimately prove, four elements: 1) a
duty requiring the defendant to conform to a certain standard of
conduct; 2) a breach of that duty; 3) proximate cause; and 4)
damages.

Coyne v. Taber Partners I, 53 F.3d 454, 459-462 (1st

Cir. 1995); Woods-Leber v. Hyatt Hotels of P.R., 124 F.3d 47, 50
(1st Cir. 1997).

“These requirements cannot be satisfied unless

4

The Court’s analysis now turns to the Municipality’s possible liability under
Art. 1802. Because well-established Puerto Rico law provides Plaintiff with a
direct action against MAPFRE as the Municipality’s insurer, in the event that
the Municipality is found liable to Plaintiff, MAPFRE is liable to Plaintiff.
See Garcia, 92 D.P.R. at 255.

21

the plaintiff proves that the injury was reasonably foreseeable,
and, thus, could have been avoided had the defendant acted with
due

care.”

Woods-Leber,

124

F.3d

at

50-51.

Therefore,

to

recover on a theory of negligence, Plaintiff must show that the
negligent

acts

or

omissions

of

the

proximate cause of his injuries.

Municipality

were

the

Malave-Felix v. Volvo Car

Corp., 946 F.2d 967 (1st Cir. 1991)(stating that Puerto Rico
defines legal cause as “proximate cause,” and not actual or
factual cause).
The

duty

of

care

“is

anticipating

injuries to probable victims.”
Laboratories,

Inc.,

194

F.3d

reasonably

probable

Irvine v. Murad Skin Research
313,

322

(1st

Cir.

1999).

“A

person breaches the duty of reasonable care when his actions
create
show

reasonably

the

foreseeable

foreseeable

risks

risks.
created

A

plaintiff,

by

then,

defendant’s

must

acts

or

omissions in order to carry his burden as to the element of a
tort claims.”

Vazquez-Filippetti v. Banco Popular de P.R., 504

F.3d 43, 49 (1st Cir. 2007).
to

exercise

due

diligence

An actor is negligent if he fails
to

prevent

a

foreseeable

injury.

Malave-Felix, 946 F.2d at 972 (“a person is liable for injuries
that

a

prudent

Rivera-Santiago

person
v.

United

reasonably
States,

could
Civ.

No.

anticipate.”);
08-1266,

2009

see
WL

702235, at *3 (D.P.R. Mar. 11, 2009)(holding that “negligence

22

ensues

if

the

injuries

could

be

foreseen

or

reasonably

anticipated by a reasonable and prudent person.”).
Further, Article 1802 requires the plaintiff to demonstrate
that defendant had either actual or constructive knowledge of
the dangerous condition. Mas v. United States, 984 F.2d 527 (1st
Cir.

1993).

ordinarily

Therefore,
depends

on

in

“a

premise

knowledge.”

liability

case,

fault

v.

United

Nieves-Romero

States, 715 F.3d 375 (1st Cir. 2013).
After a plaintiff demonstrates that the defendant breached
its

duty

of

care,

plaintiff

must

show

that

defendant’s

negligence was the proximate cause of his injuries.

Vazquez-

Filippetti, 504 F.3d at 49; see Malave-Felix, 946 F.2d at 972
(“one becomes liable, however, only if his negligence is the
proximate cause of someone else’s injuries.”).

Under Article

1802, proximate cause is defined in terms of foreseeability,
which requires that a reasonable person should have foreseen the
consequences of what actually occurred.

Vazquez-Filippetti, 504

F.3d at 49; Wojciechowicz v. U.S., 582 F.3d 57, 67 (1st Cir.
1999); Malave-Felix, 946 F.2d at 971-72; Grajales-Romero v. Am.
Airlines, Inc., 194 F.3d 288 (1st Cir. 1999).

“To establish

proximate cause, a plaintiff must prove that the accident was
‘foreseeable and could have been avoided if the defendant had
not breached its duty of care.’”

Wojciechowicz,

(quoting Grajales-Romero, 194 F.3d at 296).
23

582 F.3d at 67

In order for an

event to be foreseeable, a reasonable, prudent person must be
able to conclude from the evidence that “the risk complained of
is

among

the

universe

of

risks

recognizable

by

reasonably

prudent persons acting with due diligence under the same or
similar circumstances.”
actions

may

only

be

Coyne, 53 F.3d at 460.
the

proximate

cause

“A defendant’s

of

a

plaintiff’s

injuries if they in fact caused the injuries and the defendant
could have reasonably foreseen that the injuries would result
from his actions.”
action

of

reasonable

the

Vazquez-Filippetti, 504 F.3d at 49.

[defendant]

person,

would have done.”

under

must

the

same

be

judged

or

against

similar

“The

what

a

circumstances,

Wojciechowicz, 582 F.3d at 67.

Defendants and Plaintiff’s primary point of conflict is on
whether or not the Municipality has an absolute, undelegable
duty to keep its sidewalks safe. See Docket No. 318 at 3; see
also Docket No. 354 at 4. If the Court finds the Municipality’s
duty is undelegable, then a jury must determine if the sidewalks
were kept in a reasonably safe condition or not. See HarleyDavidson Credit Corp. v. Galvin, 807 F.3d 407, 413 (1st Cir.
2015)(a dispute about the reasonableness of a particular act or
conduct

is

an

issue

of

material

facts

for

the

purposes

of

summary judgment). Plaintiff contends the Municipality breached
its duty to keep its sidewalks safe and the dangerous condition
of the sidewalk was a proximate cause of Plaintiff’s accident.
24

See Docket No. 318. Defendants contend that all control and
dominion over the southern sidewalk on Fernandez Juncos Avenue,
and the land to the south of the sidewalk, had been transferred
to the Puerto Rico Convention Center District Authority for the
development, administration, operation, and maintenance of the
Bahia

Urbana

project.

See

Docket

No.

270

at

11.

Thus,

the

Municipality had no control over the allegedly unsafe sidewalk
and

is

not

liable

for

any

damages

caused

by

any

unsafe

conditions on those sidewalks. Id. Plaintiff’s do not dispute
Defendants’

claim

that

the

control

and

dominion

over

the

sidewalks was transferred as part of the agreement for the Bahia
Urbana. Instead, Plaintiff argues that a municipality can never
entirely

delegate

the

duty

to

keep

the

sidewalks

in

its

jurisdiction reasonably safe to a third-party. Docket No. 318 at
3.
Defendants argue that Plaintiff’s position is unsupported
by case law. However,

in support of his

argument, Plaintiff

cites Del Toro v. Gobierno de la Capital, a Puerto Rico Supreme
Court case that is controlling in the instant matter. 93 D.P.R.
481 (1966). The court in Del Toro held the following:
“It is the municipality’s duty to keep its
roads and its sidewalks in reasonably safe
conditions for those citizens who make use of
them. The breach of this duty constitutes
negligence and, in particular instances, the
municipality is liable for damages suffered by
a person due to obstacles or defects, known to
25

the municipality, on its streets and sidewalks.
That
duty,
and
the
corresponding
responsibility, does not end merely because the
unsafe condition on the municipality’s roads or
sidewalks is product of a third party’s conduct
and was created without the municipality’s
consent if the municipality knew or should have
known of the unsafe condition.” Del Toro at 485
(emphasis ours).5
Based on the text of the Del Toro decision, it is clear to
the Court that the Municipality has a duty to keep its roads and
sidewalks

reasonably

safe

and

free

of

any

potential

unsafe

condition that it knows or should know of. Id. Therefore, it is
apparent to the Court that there are various issues of material
fact governing the outcome of the instant case. First, there is
no

conclusive

evidence

before

the

Court

shedding

light

on

whether the Municipality knew or should have known that the
cement

barriers

blocking

pedestrian

transit

the

southern

sidewalk of the Fernandez Juncos Avenue posed a potential danger
to

pedestrians.

If

knowledge

is

found

or

imputed

on

the

Municipality, then the jury must determine if the steps taken by
the Municipality to counter the potential dangerous condition,
if any, were reasonable enough to shield them from liability.
Accordingly, finding genuine issues of material fact, the
Court

5

hereby

DENIES

Defendants

Translated by the Court.
26

Municipality

of

San

Juan

and

MAPFRE’s Motion for Summary Judgment (Docket No. 270) on the
issue of liability under Art. 1802.
iv.

Crossclaims brought by Third-Party Defendants RiviereAndino and Seguros Multiples against the Municipality and
MAPFRE

Third-party
Multiples’

Defendants

Crossclaim

Riviere-Andino

against

MAPFRE

and

and
the

Seguros

Municipality

(Docket No. 76) is essentially a claim for contribution against
alleged joint tortfeasors the Municipality and MAPFRE. Puerto
Rico

substantive

law

expressly

recognizes

contribution amongst joint tortfeasors.

the

right

of

Garcia v. Gobierno de

la Capital, 72 D.P.R. 138, 72 P.R.R. 133 (1951).

In so holding,

the Supreme Court of Puerto Rico highlighted the importance of
resolving

all

disputes

in

one

single

trial.

Id.

at

147.

Furthermore, the Supreme Court emphasized that the filing of a
complaint

against

one

joint

tortfeasor

prejudices

tortfeasors,

thereby

tolling

the

statute

contribution

actions

during

the

pendency

lawsuit.

Id. at 148-149.

of

all

joint

limitations

of

the

in

original

The underlying rationale is that no

plaintiff has the right to prefer one defendant over others in
negligence cases were various parties did in fact contribute to
plaintiff’s harm.
importance,

is

Id. at 149.
the

fact

that

Additionally, and of critical
the

Garcia

Court

expressly

indicated that the right to contribution does not arise until a
27

joint tortfeasors has effectuated payment to the plaintiff.

Id.

at 147 (citing Associated Transport, Inc. v. Bonoumo, 62 A.2d
281,

191

Md.

442

Municipality’s

(1948))(emphasis

claim

that

the

ours).

As

the

Defendants

Third-Party

such,

and

crossclaimants have breached their statutory duty to notify suit
within the ninety-day window provided by 21 L.P.R.A. § 4703(a)
is incorrect, as Riviere-Andino and Seguros Multiples’ right to
contribution has not arisen.
Moreover,

the

Court

stresses

that

it

would

be

both

illogical and unreasonable to force a joint tortfeasor to notify
of a potential contribution action against a potential joint
tortfeasors

before

the

original

dispute

is

finalized.

In

addition, dismissing a claim for contribution before the right
to

contribution

even

arises

would

directly

contravene

31

L.P.R.A. §§ 3105, 3109, and 5304 and could potentially result in
the unjust enrichment of joint tortfeasors that were not parties
in
6

the

original

action.6

Accordingly,

the

Court

finds

31 L.P.R.A. § 3105 states:

Each of the joint creditors may do whatever may be profitable to the others,
but not what may be prejudicial.
The actions instituted against any one of the joint debtors shall prejudice
all of them.
31 L.P.R.A. § 3109 states:
The payment made by any of the joint debtors extinguishes the obligation.
The person who made the payment can only claim from his codebtors the shares
pertaining to each one with interest on the amounts advanced.

28

crossclaimants
failed

to

Riviere-Andino

comply

with

the

and
duty

Seguros
to

Multiples

notify

the

have

not

Municipality

pursuant to 21 L.P.R.A. § 4703(a) because the matter is not ripe
for

adjudication.

Therefore,

the

Court

DENIES

Defendant

Municipality of San Juan’s Motion for Summary Judgment (Docket
No. 270) as to the cross-claim (Docket No. 76). However, because
the matter is not yet ripe for adjudication, the Court hereby
DISMISSES the crossclaim (Docket No. 76) without prejudice and
encourages

Third-Party

Defendants

Riviere-Andino

and

Seguros

Multiples to re-file the claim if and when the matter becomes
ripe.
IV.

CONCLUSION

For the aforementioned reasons, the Defendants Municipality
of San Juan and MAPFRE PRAICO Insurance Company’s Motion for
Summary Judgment (Docket No. 270) is hereby GRANTED in part and
DENIED in part:

The nonfulfilment of the obligation by reason of the insolvency of a joint
debtor shall be made good by his codebtors in proportion to the debt of each
of them.
31 L.P.R.A. § 5304 states:
Interruption of prescription of actions in joint obligations equally benefits
or injures all the creditors or debtors.
This provision is likewise applicable with regard to the heirs of the debtor
in all kinds of obligations.
In obligations in common, when the creditor does not claim from one of the
debtors more than the part pertaining to him, prescription is not interrupted
for that reason with regard to the other co-debtors.

29

1. Summary Judgment is GRANTED on Defendant Municipality of
San Juan’s claim of improper notice under 21 L.P.R.A. §
4703.

Accordingly,

Plaintiff’s

claims

against

the

Municipality of San Juan (Docket No. 257) are DISMISSED
with prejudice.
2. Summary Judgment is DENIED on Defendants’ claim that MAPFRE
is no longer liable because the claims against its insured
have been dismissed.
3. Summary Judgment is DENIED on Defendants’ claim that the
Crossclaim (Docket No. 76) against them must be dismissed
because it is “anchored and contingent to Plaintiff’s claim
against the Municipality”.
4. Third-Party

Defendants

Cooperativa de
76)

is

not

without

Rafaela

Seguros Multiples’

yet

ripe

prejudice

so

Riviere-Andino
Crossclaim

for

adjudication

it

can

be

and

re-filed

and

(Docket No.
is
at

DISMISSED
a

later

juncture.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 22nd day of January, 2016.
S/ DANIEL R. DOMÍNGUEZ
DANIEL R. DOMÍNGUEZ
U.S. District Judge

30