Blomquist et al v. Horned Dorsett Primavera, Inc. et al

Filing 175

OPINION AND ORDER denying 173 Motion for Judgment as a Matter of Law. Signed by US Magistrate Judge Marcos E. Lopez on 7/24/17. (Lopez, Marcos)

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

KRISTIN BLOMQUIST, et al.,
Plaintiffs,
v.

CIVIL NO.: 13-1835 (MEL)

HORNDED DORSET PRIMAVERA, INC., et al.,
Defendants.

OPINION AND ORDER
I.

PROCEDURAL BACKGROUND
On November 1, 2013, Kristin Blomquist (“Blomquist”) and her husband Kevin Warner

(“Warner”) (collectively “Plaintiffs”) filed a complaint against the Horned Dorset Primavera, Inc.
and Universal Insurance Group, Inc. (collectively “Defendants”) alleging that Defendants were
negligent in relation to a slip and fall that Blomquist experienced at the Horned Dorset Primavera
Hotel in Rincón, Puerto Rico (“the Hotel”). See ECF No. 1. On October 4, 2016, the parties
commenced a jury trial pursuant to Plaintiffs’ claims under Puerto Rico’s general tort statute,
Article 1802 (codified as P.R. Laws Ann., tit. 31 §5141). At the close of Plaintiffs’ case in chief,
Plaintiffs moved for a directed verdict in their favor pursuant to Rule 50(a) of the Federal Rules of
Civil Procedure. ECF No. 159. This request was denied. Id. On October 6, 2016, the Jury returned
a verdict in favor of the Defendants. On October 12, 2016, judgment was entered pursuant to the
Jury’s verdict. ECF Nos. 162 and 169. On November 7, 2016, Plaintiffs filed a renewed motion
for judgment as a matter of law. ECF No. 173. In the alternative, Plaintiffs move for a mistrial and
request a new trial. Id.

II.

FACTUAL BACKGROUND
On April 4, 2013, Plaintiffs checked into the Hotel to attend a friend’s wedding, which was

held at the Hotel on April 6, 2013. After the wedding ceremony, Plaintiffs attended a banquet and
reception, which were also held at the Hotel. After the reception, some of the guests decided to use
the pool at the Hotel. Plaintiff Blomquist left the area where the reception was held to change into
her bathing suit. In the early morning hours of April 7, 2013, between 12:00 am and 1:30 am,
wedding guests poured water and soap onto the dance floor and used the dance floor to dance, slip,
and slide on the wet, soapy surface; the guests slid on their front sides, backsides, and sideways.
While wearing his tuxedo, Plaintiff Warner used the wet, soapy dance floor to dance, slip, and
slide on its surface. At some point between 12:00 am and 1:30 am, after the wedding guests had
poured water and soap on the dance floor, and once Blomquist returned to the reception after
putting her bathing suit on, she slipped and fell on the wet, soapy dance floor. 1
III.

ANALYSIS
1. Renewed Motion for Judgment as Matter of Law and Motion for New Trial
Review of a Rule 50 motion is strongly weighted toward preservation of the jury verdict,

and the “court is without authority to set aside a jury verdict and direct entry of a contrary verdict
unless the evidence points so strongly and overwhelmingly in favor of the moving party that no
reasonable jury could have returned a verdict adverse to that party.” Keisling v. SER–Jobs for
Progress, 19 F.3d 755, 759–60 (1st Cir. 1994); see N. Laminate Sales, Inc. v. Davis, 403 F.3d 14,
26 (1st Cir. 2005). “When ruling upon a motion for judgment notwithstanding the verdict, the trial
judge may not evaluate the credibility of the witnesses, the weight of the evidence, or attempt to

1

The facts above were stipulated by the parties and provided to the Jury as stipulated facts during the presentation of
jury instructions. Hrg. 10/6/2016 at 4:35 pm.

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resolve conflicting testimony, because credibility questions are within the exclusive province of
the jury. The judge must view the evidence in the light most favorable to the non-movant and grant
that party every reasonable inference that the jury might have found in its favor.” Acevedo García
v. Vera Monroig, 213 F.Supp.2d 42, 47 (D.P.R.2002) (internal citations omitted). 2
Article 1802, Puerto Rico’s general tort statute, provides, “[a] person who by act or
omission causes damage to another through fault or negligence shall be obliged to repair the
damage so done.” P.R. Laws Ann., tit. 31, § 5141. In order to prevail in a general tort claim under
Puerto Rico law, a plaintiff must establish the following elements: “(1) evidence of physical or
emotional injury, (2) a negligent or intentional act or omission . . . , and (3) a sufficient causal
nexus between the injury and defendant's act or omission (in other words, proximate cause).”
Vázquez-Filippetti v. Banco Popular de P.R., 504 F.3d 43, 49 (1st Cir. 2007) (citing Tórres v.
KMart Corp., 233 F. Supp. 2d 273, 277-78 (D.P.R. 2002)).
The element of negligence has two sub-elements: duty and breach. Vázquez-Filippetti, 504
F.3d at 49. “In most cases, the duty is defined by the general rule that one must act as would a
prudent and reasonable person under the circumstances.” Id. (citing Ortiz v. Levitt & Sons of P.R.,
Inc., 1 P.R. Offic. Trans. 407 (1973)). A defendant breaches that duty if he acts or fails to act “in

2

Federal Rule of Civil Procedure 50 provides in pertinent part,
If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable
jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court
may: (A) resolve the issue against the party; and (B) grant a motion for judgment as a matter of law
against the party on a claim or defense that, under the controlling law, can be maintained or defeated
only with a favorable finding on that issue.

A Rule 50(a) motion may be made at any time before the case is submitted to the jury. Fed R. Civ. P. 50(a). If the
court does not grant the Rule 50(a) motion, the court is considered to have submitted the matter to the jury subject to
the court’s later deciding the legal questions raised by the motion. Fed R. Civ. P. 50(b). No later than 28 days after
entry of judgment the movant may file a renewed motion for judgment as a matter of law pursuant to Rule 50(b). Id.
As Defendants have not challenged the procedural preconditions of Plaintiffs’ Rule 50(b) motion, this opinion and
order will focus the merits of Plaintiffs’ request.

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a way that a reasonably prudent person would foresee as creating undue risk.” Vázquez-Filippetti,
504 F.3d at 49 (citing Pacheco Pietri v. ELA, 1993 P.R. Offic. Trans. 839,817 (1993) (Alonso, J.,
dissenting)). Thus, a plaintiff must show that the defendant failed to “exercise due diligence to
avoid foreseeable risks.” Lang v. Corporación de Hoteles, 522 F. Supp. 2d 349, 365-66 (D.P.R.
2007) (quoting Malavé-Félix v. Volvo Car Corp., 946 F.2d 967, 971 (1st Cir. 1991)); see also
Vázquez-Filippetti, 504 F.3d at 49.
Plaintiffs contend they are entitled to a directed verdict of negligence because the Hotel’s
knowledge that guests had created a dangerous situation on the dance floor and were cavorting on
the same “created a duty to remediate the dangerous condition, and stop the dangerous activity.”
ECF No. 173 at pg. 7. At trial, there was testimony that Geraldine Thouvenin, a hotel employee at
the time, told the groom that slipping and sliding on the dance floor was not recommended and
that it was dangerous. Hrg. 10/6/2016 at 10:20 am. According to Thouvenin, the groom
disregarded her warning, and then retrieved soap from the Hotel’s kitchen, and added it to the
dance floor. Id. 3 While Plaintiffs argue that Thouvenin took no further action to halt the guests
from using the dance floor, the Jury determined the Hotel was not negligent. This implies they
found the Hotel staff acted reasonably and prudently under the circumstances in deciding not to
halt the wedding reception. 4 In light of the fact that there was evidence to suggest that wedding

3
Plaintiffs did not sue Michael Dixon, the groom. If anything, they attempted to prevent a third-party complaint
against the groom and the bride to proceed. See ECF Nos. 20, 21, 22, 41, 42, 44, 45, 46, 47.
4
Plaintiffs imply that Defendants are strictly liable for damages resulting from a dangerous condition on the premises
if Hotel staff knew or should have known of the dangerous condition. The language they cite in support of this position,
however, merely states that actual or constructive knowledge of the dangerous condition is a necessary condition to
impose liability. See Torres v. KMart Corp., 233 F. Supp. 2d 273, 278 (D.P.R. 2002) (“liability is only imposed in
situations that involve risky conditions inside the business premises that the owner knew or should have known
existed.”)(emphasis added). See also Opinion and Order on Summary Judgment, ECF No. 83 at pgs. 7-8. Although
under Puerto Rico law a hotel-keeper owes its guests a heightened duty of care and protection, the hotel-keeper is not
an insurer of its guests’ well-being. Consequently, notwithstanding the heightened duty of care and protection, the
hotel-keeper is not liable for harm unless the harm is reasonably foreseeable. Woods-Leber v. Hyatt Hotels of Puerto
Rico, Inc., 124 F.3d 47, 51 (1st Cir. 1997).

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guests and/or the groom created the dangerous condition (a condition that Blomquist’s husband
was well aware of when he used the wet, soapy dance floor to dance, slip, and slide on its surface)
and that at least one member of the Hotel’s staff warned the groom, the evidence does not point so
strongly and overwhelmingly in favor of liability that no reasonable jury could have returned a
verdict for the Defendants. Therefore, Plaintiffs’ request for judgment notwithstanding the verdict
is DENIED.
In the alternative, Plaintiffs request a new trial, contending the Jury’s verdict was against
the weight of the evidence and that maintaining the verdict would permit a miscarriage of justice.
A district court may order a new trial under Federal Rule of Civil Procedure 59(a) “only if the
verdict is against the law, against the weight of the credible evidence, or tantamount to a
miscarriage of justice.” Crowe v. Marchand, 506 F.3d 13, 19 (1st Cir. 2007).
In their request for a new trial, Plaintiffs hammer defense witness Antonio Rosa’s
testimony that he saw Blomquist dancing on the wet dance floor before her fall. This challenge is
not sufficient to grant a new trial for two reasons. First, the issue of whether Blomquist was dancing
or cavorting on the dance floor is solely relevant to the question of whether she was comparatively
negligent, and not whether the Hotel was negligent. As the Jury found the Hotel was not negligent,
whether Blomquist was comparatively negligent is moot. Second, even if Rosa’s testimony is
relevant to the question of the Hotel’s negligence, the inconsistencies in his testimony are not so
great that no reasonable jury could credit his version of events. Rosa testified to seeing Blomquist
dancing in a black bathing suit before stating, “I don’t recall if it was a black bathing suit, or black
something—she was wearing black.” Hrg. 10/6/2016 at 11:19 am and 11:30 am. While Plaintiffs
contend there was evidence that Blomquist wore a black evening gown over her pink bathing suit

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when she fell, Rosa consistently testified that Blomquist was wearing black. Joint Exhibit VII(c)
(a photo of Blomquist after the fall). While there may be grounds to doubt Rosa’s account, the
inconsistencies in his testimony are better left to the Jury to weigh.
Plaintiffs remaining arguments in support of a new trial are largely parallel to their request
for judgment notwithstanding the verdict. In light of the same circumstances discussed in the
context of Plaintiffs’ request for judgment notwithstanding the verdict, the Jury’s verdict was not
against the weight of the evidence. Therefore Plaintiffs’ request for a new trial pursuant to Rule
59 is DENIED.
2. Motion for Mistrial
Lastly, Plaintiffs contend a mistrial must be declared in this case because counsel Hector
Ferrer Rios and Julio Cayere Quidgely had not been granted approval by the bankruptcy court to
represent the Horned Dorset Primavera, Inc. During the pendency of this case, codefendant Horned
Dorset Primavera, Inc. filed a petition for bankruptcy. See ECF No. 93-1 (copy of voluntary
petition for bankruptcy). The bankruptcy court, however, determined that “the Debtor, its estate,
and other creditors, will not be prejudiced or affected in any way by allowing the civil litigation
initiated by the Warners to proceed to trial, as long as any judgment rendered therein is collected
only from the proceeds of Universal’s insurance policy.” ECF No. 116-1.
At the time of its petition for bankruptcy, Horned Dorset Primavera, Inc. was represented
by counsel Héctor Ferrer-Ríos and Julio Cayere Quidgley, who also represented codefendant
Universal Insurance Group, Inc. See ECF Nos. 7 and 19. Plaintiffs contend that after Horned
Dorset Primavera, Inc. entered bankruptcy proceedings, counsel Ferrer Ríos and Cayere Quidgely
required leave from the bankruptcy court to continue representing Horned Dorset Primavera, Inc.,

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and that no leave was granted. 5 Plaintiffs therefore argue that Horned Dorsett Primavera, Inc. was
not represented by approved counsel at trial, and the case must be tried anew with proper counsel.
Plaintiffs’ motion for mistrial is untenable because the error by counsel Ferrer Ríos and
Cayere Quidgely, if any, was harmless to the trial in this case. Even if counsel Ferrer Ríos and
Cayere Quidgely were not granted leave from the bankruptcy court to represent the Horned Dorset
Primavera, the Jury returned a verdict in favor of Defendants. The Bankruptcy Code implies the
purpose of requiring court appointment of an attorney for the debtor is to promote the best interests
of the estate. See 11 U.S.C. §327(e). In light of the Jury’s verdict, it is hard to fathom that counsel
Ferrer Ríos and Cayere Quidgely’s representation was not in the best interests of the estate. The
error, if any, is a matter for the bankruptcy case, and does not warrant disturbing the Jury’s verdict
in the case at bar. Furthermore, although defense counsel’s lack of leave to appear for Horned
Dorset Primavera, Inc. would have been evident before trial in the bankruptcy case docket,
Plaintiffs waited until after the Jury’s verdict to object to Horned Dorset Primavera Inc.’s alleged
lack of approved counsel. In failing to object in a timely manner, Plaintiffs have waived the issue.
See Phav v. Trueblood, Inc., 915 F.2d 764, 769 (1st Cir. 1990) (“If a slip has been made, the parties
detrimentally affected must act expeditiously to cure it, not lie in wait and ask for another trial
when matters turn out not to their liking.”)
IV.

CONCLUSION
For the foregoing reasons, Plaintiffs’ motion requesting judgment notwithstanding the

verdict or a new trial (ECF No. 173) is DENIED.

5

Title 11, U.S.C. section 327(e) provides that a trustee, with the court's approval, may employ, for a specified special
purpose, other than to represent the trustee in conducting the case, an attorney that has represented the debtor, if in the
best interest of the estate, and if such attorney does not represent or hold any interest adverse to the debtor or to the
estate. Plaintiffs aver that after making an exhaustive review of the Bankruptcy proceedings related to Horned Dorset
Primavera’s Chapter 11 Bankruptcy Petition in Case No. 15-03837-ESL 11, they have been unable to locate any
designation of either counsel Ferrer-Rios or Cayere-Quidgely as Special Counsel to represent the Horned Dorset
Primavera, Inc. in this case.

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IT IS SO ORDERED
In San Juan, Puerto Rico, this 24th day of July, 2016.
s/Marcos E. López
U.S. Magistrate Judge

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