Aponte-Davila v. Municipality of Caguas et al

Filing 321

Certification of Issue to the Puerto Rico Supreme Court. The Clerk of Court shall transmit this Certification to the Clerk of the Puerto Rico Supreme Court pursuant to P.R.Laws Ann. tit. 4 Ap. XXI-B, R. 25. Signed by Ju dge Pedro A. Delgado-Hernandez on 7/17/2017. (Attachments: # 1 Appendix, # 2 Docket Sheet, # 3 Opinion and Order, # 4 Attachment A O&O, # 5 Attachment B O&O, # 6 Complaint, # 7 Opinion and Order, # 8 First Circuit Opinion, # 9 Expert Report)(LMR)

Case 3:13-cv-01367-PAD Document 1 Filed 05/09/13 Page 1 of 8

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JOSE APONTE DAVILA

CIVIL NO. 13-

Plaintiff
v.
PLAINTIFF DEMANDS
TRIAL BY JURY
MUNICIPALITY OF CAGUAS;
CONSOLIDATED WASTE SERVICE CORP;
MAPFRE/PRAICO
Defendants
COMPLAINT
TO THE HONORABLE COURT:
Comes now plaintiff, through the undersigned attorneys, and
respectfully alleges and prays:
I. THE PARTIES
1)

Plaintiff

José

Aponte

Dávila

is

of

legal

age

and

domiciliary of the state of Texas.
2)

Defendant

Municipality

of

Caguas

is

a

municipal

corporation with capacity to sue and be sued, and a domiciliary
of Puerto Rico. At all times relevant herein, the Municipality
was the owner and had under its care, custody and control the
sidewalk on Dr. Rufo Street, corner of Goyco Street in Caguas,
Puerto Rico.
3)

Upon

information

and

belief,

defendant

Consolidated

Waste Service Corp. (ConWaste) is a corporation organized and
existing under the laws of Puerto Rico with its principal place

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of business in this jurisdiction. ConWaste is a private
collection company and, at all relevant times

garbage

herein, was the

owner of a dumpster located on the sidewalk of Dr. Rufo street,
corner of Goyco street in Caguas, Puerto Rico.
4)

Upon information and belief, defendant MAPFRE/PRAICO

is an insurance company organized under the laws of Puerto Rico,
with its principal place of business in this jurisdiction. At
all relevant times herein, defendant MAPFRE/PRAICO had in full
force

and

effect

an

insurance

policy

covering

the

legal

liability of defendant ConWaste for the damages claimed herein.
II. JURISDICTION
5)
over

This Honorable Court has subject-matter jurisdiction

this

because

action

it

is

pursuant

between

to

citizens

28
of

U.S.C.

section

different

1332(a)(1),

states,

and

the

amount in controversy is in excess of $75,000.00 exclusive of
interest and costs.
III. TOLLING OF THE STATUTE OF LIMITATIONS
6)

On March 9, 2010, plaintiff filed the cause styled

José Aponte Dávila, et al v. Municipio de Caguas, et al, Civil
Number

EDP2010-0074(402),

Court

of

First

Instance

of

Puerto

Rico, Superior Court of Caguas, thereby tolling the statute of
limitations against defendants on the claims brought pursuant to
Articles 1802 and 1803 of the Civil Code of Puerto Rico, 31
L.P.R.A. section 5141 and 5142.
2

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7)

On March 13, 2012 plaintiff moved to dismiss without

prejudice Civil Number EDP2010-0074(402). While the Municipality
of Caguas did not oppose to the dismissal, ConWaste strenuously
opposed. On May 11, 2012, the Superior Court entered judgment
Civil Number EDP2010-0074(402) without prejudice. The dismissal
order was notified on May 15, 2012.
8)

Throughout the course of the state court proceedings,

defendant MAPFRE/PRAICO conducted settlement negotiations with
plaintiff which also tolled the statute of limitations.
IV. THE FACTS
9)

On July 13, 2009, at around 9:00 a.m., plaintiff José

Aponte Dávila was walking on the sidewalk in Dr. Rufo street
inside the Caguas public transportation terminal. When plaintiff
got to the intersection of Dr. Rufo and Goyco streets, he found
that there was a dumpster partially obstructing the sidewalk.
10)

As

plaintiff

José

Aponte

went

by

the

dumpster

he

suddenly slipped and fell. His slip and fall was so fast and
unexpected that plaintiff could not use his hands to break his
fall and Aponte’s body received the full impact of the fall.
V. NEGLIGENCE
A. MUNICIPALITY OF CAGUAS
11)

Plaintiff’s fall was due to the exclusive fault or

negligence of defendants Municipality of Caguas and ConWaste. As
owner

of

the

sidewalk

where

the

accident

occurred,

the
3

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Municipality had a non-delegable duty to keep the sidewalk in
use

for

its

intended

purpose,

and

to

remove

any

barrier

or

obstacle such as the dumpster. The Municipality breached this
duty

by

permitting

ConWaste

to

place

its

dumpster

partially

invading and obstructing the sidewalk.
12)

As if that was not enough, the Municipality was also

negligent by failing to properly maintain and clean the sidewalk
in light of the presence of a garbage dumpster on it. The lack
of maintenance and cleaning allowed the accumulation of grease
that seeped from the dumpster into the sidewalk, turning the
sidewalk

into

a

highly

slippery

and

dangerous

area

for

its

users, and causing plaintiff’s fall.
B. CONWASTE AND ITS INSURER MAPFRE/PRAICO
13)

Defendant

ConWaste

was

negligent

by

placing

its

dumpster on the sidewalk knowing that sidewalks are not intended
for

this

purpose,

and

that,

by

doing

so,

it

was

improperly

invading the walking area. Defendant knew, or, in the exercise
of

due

diligence

dumpster
inordinate

on

the

amount

should

have

sidewalk,
of

risk.

it

known,
was

that,

exposing

Defendant

also

by

placing

citizens
knew,

or

to
in

the
an
the

exercise of due diligence should have known, that by placing the
dumpster on the sidewalk it assumed the duty to both monitor and
clean the sidewalk. Defendant’s failure to monitor and clean the
sidewalk allowed the accumulation of grease that seeped from the
4

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dumpster into the sidewalk, turning it into a highly slippery
and dangerous area for its users, and causing plaintiff’s fall.
14)

Under

the

laws

of

Puerto

Rico,

defendant

MAPFRE/PRAICO, as liability insurer, is jointly and severally
liable with its insured ConWaste for the damages claimed herein.
VI. FIRST CAUSE OF ACTION FOR PLAINTIFF’S PHYSICAL DAMAGES
15)

As a result of his fall plaintiff José Aponte suffered

the following damages:
a)

back trauma;

b)

right ankle trauma;

c)

right knee trauma;

d)

right hip trauma;

e)

right side trauma;

f)

right arm trauma;

g)

laceration and hematoma on the right elbow;

h)

lumbar sprain;

i)

right elbow sprain;

j)

discal herniation at L4-L5;

k)

anular swelling at L2-L3;

l)

discal protusion at L5-S-1;

m)

bilateral radiculopathy L5-S1;

n)

lumbar strain/sprain;

o)

lumbar myositis;

p)

lumbar herniated disc;
5

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q)

lumbar radiculopathy;

r)

plaintiff went to the emergency room to
receive emergency treatment;

s)

pain killers had to be administered to him;

t)

plaintiff has had to submit himself to Xrays, MRI’s and other diagnostic studies;

u)

plaintiff

had

to

undertake

over

twenty

physical therapy sessions;
v)

plaintiff

has

to

take

medications

for

the

rest of his life.
16)

As a result of the accident plaintiff José Aponte is

partially permanently disabled. Plaintiff’s physical damages are
reasonably

estimated

at

a

sum

of

not

less

than

six

million

dollars.
VII. SECOND CAUSE OF ACTION FOR PLAINTIFF’S DAMAGES FOR MENTAL
AND MORAL ANGUISH
17)
have

The

embarrassment,
discomfort,

injuries

severe

caused

severe

pain

and

humiliation,

disability

and

which

are

permanent

suffering,
loss

of

mental

and

in

distress,

enjoyment
moral

nature,
despair,

of

anguish,

life,
all

of

which are continuing in now, and will continue permanently in
the future. As a result of the foregoing, plaintiff José Aponte
has been damaged in a sum of not less than six million dollars.
VIII. THIRD CAUSE OF ACTION FOR PLAINTIFF’S LOSS OF EARNINGS

6

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18)

At

the

time

of

the

accident

driver and permanently employed.

plaintiff

was

a

truck

As a result of the injuries

suffered in the accident, plaintiff is permanently unable to
work.
19)

Plaintiff’s

loss

of

earnings

as

a

result

of

his

disability are estimated in a sum not less than two million
dollars.
IX. FOURTH CAUSE OF ACTION FOR PLAINTIFF’S PAST AND FUTURE
MEDICAL EXPENSES LIVING FACILITIES AND EQUIPMENT
20)

As a result of the accident plaintiff has incurred and

will continue to incur in medical expenses. Furthermore, due to
plaintiff’s disability he needs special equipment to ambulate
and

his

house

needs

to

be

modified

to

meet

the

needs

of

a

disabled person.
21)

The

past

and

future

expenses

incurred,

and

to

be

incurred, are estimated at not less than five hundred thousand
dollars.
X. LIABILITY
22)
injuries

The
to

accident
plaintiff

resulting
was

caused

in

the

serious

and

by

the

concurrent

severe

fault

or

negligence of defendants Municipality of Caguas and ConWaste;
therefore, they are jointly and severally liable to plaintiff.

7

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23)

Pursuant

to

the

law

of

Puerto

Rico

defendant

MAPFRE/PRAICO is jointly and severally liable with its insured
for the damages claimed herein.
WHEREFORE, it is respectfully requested that this Honorable
Court

enter

judgment

for

plaintiff

and

against

defendants,

jointly and severally, for the relief demanded in the Complaint,
with imposition of attorneys’ fees and costs.
In San Juan, Puerto Rico this 9th day of May, 2013.
RESPECTFULLY SUBMITTED.
UBARRI & ROMAN LAW OFFICE
El Caribe Building, Suite 501
53 Palmeras Street
San Juan, P.R 00901-2417
Tel: [phone]
Fax: [phone]

By:

/s/ Jose Luis Ubarri
José Luis Ubarri
USDC-PR #127209
E-mail: [e-mail]

8

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