Mateo et al v. Empire Gas Company, Inc. et al

Filing 144

OPINION AND ORDER denying 111 MOTION for Summary Judgment; denying without prejudice 116 MOTION to Bifurcate Liability and Damages Issues. Signed by Judge Jay A. Garcia-Gregory on 9/16/2016. Signed by Judge Jay A. Garcia-Gregory on 9/16/2016. (AP)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

RAY EMMANUEL MATEO, et al.,
Plaintiffs,
CIVIL NO. 13-1762 (JAG)

v.
EMPIRE GAS COMPANY, INC., et al.,
Defendants.

OPINION AND ORDER
GARCIA-GREGORY, D.J.
Pending before this Court are co-Defendants Empire Gas Company, Inc. (“Empire Gas”
or “Empire”) and City Gas, Inc.’s (“City Gas” or “City”) (collectively “Defendants”) Motion for
Summary Judgment, Docket No. 111, and co-Defendants Certain Underwriters at Lloyd’s
(“Underwriters”) and City Gas’s Motion to Bifurcate the liability and damages issues at trial,
Docket No. 116.1
This case concerns Plaintiffs’ claims of negligence related to the explosion caused by a
propane gas leak in the early morning of March 27, 2010.2 Docket No. 70. Plaintiffs allege that
the explosion was caused by a hole in the hose that carried propane gas from a cylinder outside
their home to the family’s stove. Id. Plaintiffs further allege that this leak was caused by the

1

Underwriters filed a Motion Join City Gas’s Motion to Bifurcate. Docket No. 123.
Plaintiffs consist of Ray Emmanuel Mateo, Meregilda Mateo, Thelma Isabel Jackson, minor child J.A.M. and minor
child C.A.M. Meregilda Mateo and Thelma Isabel Jackson are suing on their individual behalf, as well as in their
representative capacity of minor children J.A.M. and C.A.M. Docket No. 1. In addition, Plaintiffs are also suing for
damages caused to decedents Jorge Andino and Rafaela Mateo. Id. Thus, although not specifically stated in their
complaint, it appears that one or more of the named Plaintiffs are suing in a representative capacity on behalf of the
decedents.
2

Civil No. 13-1762 (JAG)

2

negligence of co-Defendants Empire Gas, City Gas, and Pedro Dones in, inter alia, failing to
properly test the propane gas; failing to give consumers adequate warnings; failing to properly
instruct consumers; failing to provide adequate training; failing to properly install the gas
cylinder; and failing to properly inspect the gas system. Id. This explosion caused extensive
physical and emotional damages to the members of the Andino-Mateo family that were in the
house—Jorge Andino, Rafaela Mateo, minor child J.A.M., and minor child C.A.M.—eventually
leading to the deaths of Jorge Andino and Rafaela Mateo, as well as mental and emotional
damages to other family members—Thelma Isabel Jackson, Meregilda Mateo, and Ray
Emmanuel Mateo. Id.
After reviewing the filings and applicable law, Empire and City’s’ Motion for Summary
Judgment is DENIED, and the Motion to Bifurcate the liability and damages issues is DENIED
WITHOUT PREJUDICE.

BACKGROUND3
Empire Gas is a propane gas wholesaler that distributes liquid propane gas throughout
Puerto Rico. Docket No. 112 at 1. City Gas is a filling plant of propane gas affiliated with Empire
Gas. Id. Pedro Dones (“Dones”) is a licensed and certified independent propane gas vendor,
referred to in Puerto Rico as a “gasero.” Id. at 2. The 100 lbs. propane gas cylinder related to the
events in this case was filled by City Gas on February 19, 2010 for Dones. Id. at 2. On that same
date, Dones then connected the relevant cylinder to the existing propane gas system at the

3

Unless a specific disagreement is acknowledged, the Court deems the following facts undisputed.

Civil No. 13-1762 (JAG)

3

Adino-Mateo residence. Id. at 4. Neither Empire Gas nor City Gas sold the subject gas cylinder
to Plaintiffs or decedents, or had any part in the installation or connection of the gas cylinder or
any other portion of the propane gas system in the Adino-Mateo residence. Id. at 3.
Empire Gas is the number one importer and distributor of propane gas in Puerto Rico.
Docket No. 114 at 11. As such, Empire Gas has superior knowledge on the subject of propane gas,
including its potential dangers and safety precautions. Docket No. 114 at 11. 4 Empire Gas is a
member of the National Propane Gas Association (“NPGA”) and the Propane Educational
Research Counsel (“PERC”). Docket No. 114 at 10-11. Empire attends NPGA and PERC meetings
and seminars, where Empire receives educational materials regarding the use of propane gas,
adequate warnings, and safety instructions. Docket Nos. 114 at 11; 128 at 16-17
Dones was not given any training from Empire Gas or City Gas regarding the correct
installation procedures for a propane gas cylinder, or the dangers of propane gas. Docket No. 114
at 13. The Puerto Rico Public Service Commission (“PSC”) is the only local governmental body
that regulates the sale and distribution of propane gas in Puerto Rico. Docket No. 112 at 2. The
PSC provides gaseros with training and seminars before they are licensed by the PSC. Id. at 4.
Defendants contend that at the relevant time, no private entity was authorized to provide formal
training or educational seminars to gaseros. Id. However, Plaintiffs disagree, and position that

4

Plaintiffs contend that Empire Gas is the “most knowledgeable entity in Puerto Rico on the subject of [propane
gas].” Docket No. 114 at 11. Defendants deny this statement, contending that it is plaintiffs’ counsel’s own
interpretation. Docket No. 128 at 17. In his deposition, Jose Luis Sisco-Toro, Empire Gas’s representative did admit
that it was probable that Empire was the most knowledgeable entity on propane gas in Puerto Rico. Docket No.
114-1 at 53-54. However, he later attempted to soften his position, stating that this was counsel’s opinion and that
there was no way of measuring who had “greater knowledge.” Docket No. 128-1 at 17. Regardless of whether Empire
is “the most knowledgeable entity,” given Mr. Sisco’s deposition statements and Empire’s position as the largest
importer and distributor of propane gas in Puerto Rico, the Court finds it is undisputed that Empire is in a unique
position to have superior knowledge on the dangers and recommended safety precautions of propane gas.

Civil No. 13-1762 (JAG)

4

this statement only applies to trainings and seminars for licensing purposes, and that Defendants
could have provided trainings by simply registering with the PSC. Docket No. 114 at 5-6. Empire
Gas acknowledged that it had provided training to gaseros in the past. Docket No. 128-1 at 9496.
Neither Empire Gas nor City Gas provided any warning to the ultimate consumer that
the odorant in the gas would not wake a sleeping person. Docket No. 114 at 16. However, there is
no statute or regulation requiring Empire Gas or City Gas to provide this warning. Docket No.
112 at 5.

STANDARD OF REVIEW
Motion for Summary Judgment:
A motion for summary judgment will be granted if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue of material fact and that the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). A fact is in genuine dispute if it could be resolved in favor of either
party, and it is material if it potentially affects the outcome of the case. Calero-Cerezo v. U.S. Dep’t of
Justice, 355 F.3d 6, 19 (1st Cir. 2004).
The party moving for summary judgment bears the burden of showing the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “Once the moving
party has properly supported [its] motion for summary judgment, the burden shifts to the
nonmoving party . . . .” Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000)

Civil No. 13-1762 (JAG)

5

(citing DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997)). The nonmovant must demonstrate
“through submissions of evidentiary quality[] that a trial worthy issue persists.” Iverson v. City of
Boston, 452 F.3d 94, 98 (1st Cir. 2006) (internal citations omitted). In evaluating a motion for
summary judgment, the court “must view the entire record in the light most hospitable to the
party opposing summary judgment, indulging in all reasonable inferences in that party's favor.”
Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990). The court may safely ignore “conclusory
allegations, improbable inferences, and unsupported speculation.” Medina-Munoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990). It is important to note that, throughout this process,
courts cannot make credibility determinations or weigh the evidence, as these are jury functions
and not those of a judge. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

ANALYSIS
I.

Motion for Summary Judgment
Defendants claim that the Court should grant summary judgment in their favor because

Plaintiffs have not shown that Defendants owed a duty of care to Plaintiffs. Docket No. 111.5 The
Court disagrees. The Court holds that Defendants owed Plaintiffs the duty to act as a reasonably
prudent company under the circumstances. The Court further holds that a reasonable jury could
conclude that Defendants breached that duty. Accordingly, the Motion for Summary Judgment
is denied.

5

To avoid repeating the phrase “Plaintiffs and decedents” throughout this opinion, when the Court refers to
“Plaintiffs” in the context of Defendants’ duty of care and potential breach of that duty, this phrase shall include the
two decedents in this case, even though they are not named Plaintiffs.

Civil No. 13-1762 (JAG)

6

A. The Existence of a Duty of Care
Defendants owe a duty of care to Plaintiffs to act as a reasonably prudent person—in the
case of Defendants, a reasonably prudent company—would act under the circumstances.
Plaintiffs have asserted negligence claims under Article 1802 of the Puerto Rico Civil Code, 31
L.P.R.A. § 5141, against Defendants. Docket No. 70. To prevail under this section, Plaintiffs must
prove “(1) a duty requiring the defendant to conform to a certain standard of conduct, (2) a
breach of that duty, (3) proof of damage, and (4) a causal connection between the damage and
the tortious conduct.” De-Jesus-Adorno v. Browning Ferris Indus. of Puerto Rico, Inc., 160 F.3d 839, 842
(1st Cir. 1998) (citing Sociedad De Gananciales v. Gonzalez Padin, 17 P.R. Offic. Trans. 111, 125 (1986)).
Defendants argue that Plaintiffs have failed to meet the first element because they have
not shown that Defendants owed any duty of care to Plaintiffs. Docket No. 111. In particular,
they argue that Plaintiffs have not identified any statute, regulation, or case law that required
Defendants to conform their conduct according to Plaintiffs’ standards. Id. However, Defendants
impose an overly harsh burden on Plaintiffs. The general duty of care under Article 1802 is that
“one must act as would a prudent and reasonable person under the circumstances,” see VazquezFilippetti v. Banco Popular de Puerto Rico, 504 F.3d 43, 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)), and “exercise due diligence to avoid
foreseeable risks,” see Malave-Felix v. Volvo Car Corp., 946 F.2d 967, 971 (1st Cir. 1991) (citing Jimenez
v. Pelegrina Espinet, 12 P.R. Offic. Trans. 881, 886 (1982). This duty has been specifically applied to
sellers of products. See Carballo-Rodriguez v. Clark Equip. Co., 147 F. Supp. 2d 66, 72 (D.P.R. 2001); see
also Doe v. Solvay Pharm., Inc., 350 F. Supp. 2d 257, 263 (D. Me. 2004), aff'd, 153 F. App'x 1 (1st Cir.

Civil No. 13-1762 (JAG)

7

2005) (“A manufacturer or seller owes a duty to exercise reasonable care to foreseeable users of
its products and to persons who are foreseeably endangered by the use of those products.”).
The Supreme Court of PR has never specifically considered whether sellers or suppliers
of a product must satisfy this general duty of care. Accordingly, this Court must attempt to
ascertain how the Puerto Rico Supreme Court would hold. See Michelin Tires, Etc. v. First Nat. Bank
of Boston, 666 F.2d 673, 682 (1st Cir. 1981). This Court believes that the Puerto Rico Court would
hold that suppliers do have a duty to act as a reasonably prudent company, under the
circumstances, to avoid foreseeable risks to all foreseeable users of its product. The Supreme
Court has held that under product liability doctrine, any actor in the supply or distribution
chain is strictly liable for putting a defective product into the stream of commerce. See Rodriguez
Mendez v. Laser Eye Surgery Mgmt. of Puerto Rico, Inc., 2016 TSPR 121, 2016 WL 3659195, at *4 (P.R.
June 15, 2016) (translation ours). The Puerto Rico Supreme Court has reaffirmed that the
purpose of this doctrine is to ensure that the costs of a defective product are borne by the
makers or sellers that introduced the product into the market. Id. (translation ours). It follows
that if policy dictates that sellers should bear the costs of their products even when they have no
degree of fault (strict liability), that this same policy would apply a fortiori to a seller of a product
that fails to exercise a degree of reasonable care in putting its product into the stream of
commerce (negligence). Thus, any seller of a product would owe a duty to the foreseeable users
of its products to act as a reasonably prudent company, under the circumstances, and to avoid
foreseeable risks.
Defendants argue that they owed no duty of care to Plaintiffs since they had no direct
contact with Plaintiffs. As Defendants state, all they did was “fill[] up the subject [propane gas]

Civil No. 13-1762 (JAG)

8

cylinder at the request of a licensed gasero . . . .” Docket No. 111. However, this does not absolve
Defendants of potential liability to Plaintiffs. A seller, manufacturer, or supplier of a product
owes a duty of care to any person whom it should expect to use the product. See Restatement (Second) of
Torts §§ 388, 394, 399 (1965) (emphasis added).6 Here, Empire and City Gas should have
expected that Dones, the gasero, would sell the tank to the ultimate consumer. Thus, their duty
of care extends to Plaintiffs, even though they had no direct contact with them.
Therefore, Plaintiffs are not required to show that Defendants violated a statute or
regulation to show that Defendants owed a duty of care. As a wholesaler and supplier of propane
gas, Empire Gas, and its filing plant, City Gas, owed a duty of care to those who may have
encountered their propane gas to act as a reasonably prudent company under the circumstances,
and to exercise due diligence to avoid foreseeable risks. Thus, the Court holds that Defendants
did owe Plaintiffs a duty of care.

B. Breach of the Duty of Care
Next, Plaintiffs must show that Defendants in fact breached their duty of care. Plaintiffs
allege Defendants breached their duty of care by 1) failing to test the odorant in their propane
gas to determine if it would wake a sleeping person; 2) failing to warn consumers that the
odorant would not wake a sleeping person; 3) failing to instruct consumers to install an
electronic gas detection alarm in their home; 4) failing to provide or offer for sale to consumers
of their propane gas an electronic gas detection device; 5) failing to provide gaseros with

6

The Puerto Rico Supreme Court has cited the Restatement (Second) of Torts approvingly on numerous occasions.
See, e.g., Rivera et al. v. Superior Pkg., Inc. et al., 132 D.P.R. 115, n. 6 (P.R. Dec. 9, 1992).

Civil No. 13-1762 (JAG)

9

adequate training to properly install, test, and maintain liquid propane gas cylinders; 6) failing
to adequately train gaseros on the hazards of propane gas; and 7) failing to ensure that gaseros
covered under their liability policy followed safety rules and regulations concerning the
installation and replacement of gas cylinders. Docket No. 70.
The question of whether a defendant breaches its duty of care is usually a jury question.
“Particular deference has been accorded [to] the jury in [negligence cases] in light of its
supposedly unique competence in applying the reasonable person standard to a given fact
situation.” 10A Fed. Prac. & Proc. Civ. § 2729 Negligence Actions (4th ed.); see also Restatement
(Second) of Torts § 328C (1965) (“it is the function of the jury to apply to the facts in evidence
the standard of conduct required by the law in the performance of the defendant's legal duty”).
“[E]ven when there is no dispute as to the facts, it usually is for the jury to decide whether the
conduct in question meets the reasonable-person standard.” 10A Fed. Prac. & Proc. Civ. § 2729
Negligence Actions (4th ed.). Thus, summary judgment is rarely granted in negligence actions.
Id.
A court may only grant summary judgment for a defendant if it determines that no
reasonable jury could find that a defendant has breached its duty of care. See Martinez De Jesus v.
Puerto Rico Elec. Power Auth., 256 F. Supp. 2d 122, 126 (D.P.R. 2003) (denying summary judgment
on Article 1802 negligence claim since reasonable juries could come to more than one
conclusion); see also Wojcik v. Town of N. Smithfield, 76 F.3d 1, 3 (1st Cir. 1996) (stating that issues
generally reserved for the jury “are properly resolved by the Court when no reasonable jury could
find otherwise”). The Restatement (Second) of Torts is particularly instructive on the Court’s
function as to this issue:

Civil No. 13-1762 (JAG)

10

Normally the determination of . . . whether the defendant has conformed to the standard of
conduct required of him by the law is for the jury. Although it involves an application of
the legal standard, and to a considerable extent a decision as to its content and
meaning (see § 328C), it is customarily regarded as a question of fact. As in the
case of other questions of fact, however (see Comment d above), the court
reserves a power of determination of the preliminary question whether the evidence
will permit the jury reasonably to come to more than one conclusion. Where it is clear upon
the evidence that the defendant has or has not conformed to what the standard of
the law requires, and that no reasonable man could reach a contrary conclusion, the court
must withdraw the issue from the jury and direct a verdict . . . .
Restatement (Second) of Torts § 328B, Com. on Clause (d) (1965) (emphasis added).
At this stage, the Court cannot conclusively determine that no reasonable jury would
find Defendants breached their duty of care to Plaintiffs. Empire Gas is the leading importer and
distributor of propane gas in Puerto Rico. In addition, Empire receives substantial educational
materials from entities like the National Propane Gas Association (“NPGA”) and the Propane
Educational Research Counsel (“PERC”) regarding the use of propane gas, adequate warnings,
and safety instructions. Thus, Empire is in a unique position to have superior knowledge of the
dangers, and recommended safety precautions, of propane gas. Despite this, neither Empire nor
City Gas provided Dones with any training or instructions concerning safety precautions and
the dangers of propane gas. A reasonable jury could conclude that this was a breach of Empire
and City Gas’s duty of care.
Defendants state that in 2010 “no private entity was authorized to provide any formal
training or educational seminars to gaseros,” Docket No. 111, seemingly suggesting that they
were prohibited by Puerto Rico law to offer gaseros, like Dones, any training. This Court is
unconvinced. First, Defendants fail to cite to any statute, regulation, or other binding authority
to support the notion that they were legally prohibited from offering training to gaseros.

Civil No. 13-1762 (JAG)

11

Defendants instead rely on a certification of the Clerk of the Public Service Commission (“PSC”)
which states that “in 2010 no private entities were authorized to provide any formal training or
educational seminars to . . . gaseros.” Docket No. 112-9. While the PSC may be able to certify that
no private entity had the PSC’s blessing to provide formal training to gaseros, this Court is not
bound by the PSC’s opinion on whether such a blessing was required under Puerto Rico law.
For this Court to determine that Defendants were prohibited from offering any training to
gaseros, the Court would have to engage in a much deeper analysis of Puerto Rico’s regulatory
framework, and Defendants have failed to provide this Court with the necessary tools for this
analysis.7
Moreover, even assuming that Defendants were not authorized by law to train gaseros, it
does not follow that they could not and should not have complied with the necessary
requirements to provide this training. Empire Gas’s own representative stated in his deposition
that Empire could provide training to gaseros, as long as it registered with the PSC, and that
Empire had provided trainings to gaseros in the past. Docket No. 128-1 at 94-96. Thus,
Defendants’ argument that they were prohibited from offering training to gaseros is
unpersuasive.
Adittionally, Plaintiffs provide the affidavit of professional engineer Roger Craddock,
who has more than 50 years of experience in the propane gas industry, including 43 years of

7

The Court also notes that the certification’s scope is ambiguous. It is unclear to the Court whether the CSP is
stating that no private entities were authorized to provide any training or education to gaseros whatsoever, or
whether this statement only applies to training and education for licensing purposes, since this appears to be the
extent of the regulatory authority of the CSP.

Civil No. 13-1762 (JAG)

12

experience investigating and researching propane gas escape incidents. Docket No. 114-4.8 In his
affidavit, Engineer Craddock stated that he was surprised that Empire Gas and City Gas did not
provide their gaseros with any information concerning the safety hazards of propane gas, proper
installation procedures, or the limitations of the gas’s odorant. Id. Engineer Craddock was
particularly surprised that gasero Dones had not been provided with the material given to
Empire and City Gas from PERC, as he stated that it was common in the United States for
gaseros to be provided with this free information. Id. Engineer Craddock opined that this
practice “places the general public in Puerto Rico in a potentially dangerous position,” and in his
opinion, “a reasonably prudent distributor and supplier of propane . . . has a duty to provide
critical safety information to gaseros and the general public . . . .” Id.
At this stage, the Court must draw all inferences in favor of the non-moving party—
Plaintiffs. Thus, given Engineer Craddock’s assertions and Empire and City Gas’s superior
knowledge on propane gas in Puerto Rico, the Court concludes that a reasonable jury could find
that a reasonably prudent propane gas wholesaler and filler would have done more to ensure

8

Defendants argue that Engineer Craddock’s affidavit should be stricken as a sham affidavit. The First Circuit has
held that “[w]hen an interested witness has given clear answers to unambiguous questions, he cannot create a
conflict and resist summary judgment with an affidavit that is clearly contradictory, but does not give a satisfactory
explanation of why the testimony is changed.” Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 5 (1st Cir. 1994).
However, Defendants fail to show how Engineer Craddock is an interested witness, or how his affidavit contradicts
his deposition testimony. First, as an expert witness, Engineer Craddock seemingly has little interest in the
outcome of this case, and Defendants submit nothing to suggest otherwise.
Furthermore, Engineer Craddock’s affidavit does not directly contradict any of his deposition statements.
Defendants point out that Engineer Craddock stated in his deposition that he was not a warnings expert. Engineer
Craddock’s affidavit does not directly contradict this assertion, as he only gives his opinion as to Defendants’
general failure to protect the public from propane gas accidents, rather than the adequacy of a specific warning.
Also, Engineer Craddock’s opinion that Defendants had a general duty to provide safety information to gaseros and
the public, is not inconsistent with his deposition statement that there is no statute or regulation that requires
Defendants to do this. As explained in footnote 9, a company can breach its duty of care even if it complies with all
government rules and regulations.

Civil No. 13-1762 (JAG)

13

that gaseros were properly trained or that its consumers were properly warned.9 Thus, summary
judgment is inappropriate on Plaintiffs’ negligence claims.10

II.

Motion to Bifurcate
Defendants seek to bifurcate the issues of liability and damages into two separate trials.11

Docket No. 116. The Court believes this request is better addressed closer to trial. Thus, the
Court denies Defendants’ motion without prejudice as premature.

CONCLUSION
For the foregoing reasons, Empire Gas and City Gas’s’ Motion for Summary Judgment is
DENIED, and Underwriters and City Gas’s Motion to Bifurcate is DENIED WITHOUT
PREJUDICE.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 16th day of September, 2016.
s/ Jay A. Garcia-Gregory

9

Defendants argue repeatedly that they cannot be found negligent because they complied with all legal statutes,
rules and regulations. Docket Nos. 111, 127. However, this is not dispositive of this issue. “Compliance with a
legislative enactment or an administrative regulation does not prevent a finding of negligence where a reasonable
man would take additional precautions.” Restatement (Second) of Torts § 288C (1965); see also Martinez De Jesus v.
Puerto Rico Elec. Power Auth., 256 F. Supp. 2d 122, 126 (D.P.R. 2003) (holding that compliance with the National
Electric Safety Code did not entitle the Puerto Rico Electric Power Authority to judgment as a matter of law on the
plaintiffs’ Article 1802 negligence claim, instead “the decision whether such compliance is enough to satisfy the
applicable standard of care rests with the jury.”). Therefore, a reasonable jury could find that Defendants breached
their duty of care to their consumers even if they complied with all statutes, rules, and regulations.
10

Defendants do not refute Plaintiffs’ ability to prove the last two elements of their negligence cause of action—
damages and causation—in their Motion for Summary Judgment. Thus, the Court need not address these.
11

For purposes of the Motion to Bifurcate, “Defendants” refers to co-Defendants City Gas and Underwriters.

Civil No. 13-1762 (JAG)

14

JAY A. GARCIA-GREGORY
United States District Judge