Kahan v. Hilton Worldwide, Inc. et al

Filing 50

OPINION AND ORDER re 33 MOTION for Partial Summary Judgment and Memorandum of Law in Support Thereof as to All Defendants filed by Kristen McCaffrey, Joe Kahan 34 MOTION for Summary Judgment filed by Posadas de Puerto Rico Associates L.L.C. Signed by US Magistrate Judge Camille L. Velez-Rive on 12/2/15.(ljt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JOE KAHAN, et. al.,
Plaintiffs,
v.

CIVIL NO. 14-1355 (CVR)

HILTON WORLDWIDE, INC., et. al.,
Defendants.

OPINION AND ORDER
INTRODUCTION
This case stems from a slip and fall suffered outside a Starbucks coffee shop located
in the exterior area of the Condado Plaza Hilton Hotel. Plaintiff Joe Kahan and his wife
Kristen McCaffrey (hereinafter “Plaintiffs”) aver that, as they were leaving the Starbucks
coffee shop after a rain shower, Kahan slipped and fell on a wet tiled area outside the
shop. As a result of the fall, Kahan twisted his knee and was ultimately diagnosed home
in California with an ACL tear and a ligament sprain, which will require an expensive
surgery and a six (6) to nine (9) months post-surgery rehabilitation period. Plaintiffs,
who had come to Puerto Rico to spend some time in Rincón surfing, spent the rest of their
vacation sitting poolside at a resort in Fajardo, as Kahan was unable to climb stairs to
their Rincón rental property, much less surf.

Thus, Plaintiffs allege their trip was

completely ruined by the accident and claim damages therefrom. Defendant is Posadas
de Puerto Rico Associates, LLC, (“Posadas”) which owns and operates the Condado Plaza
Hilton Hotel, where the incident occurred.

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Both parties have filed motions for summary judgment, inviting this Court to rule
in favor of their respective clients. (Docket Nos. 33 and 34). For the reasons explained
herein below, both Motions for Summary Judgment are hereby DENIED.
STANDARD
Summary judgment is appropriate when “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.” Fed.R.Civ.P. 56 (c). Pursuant to the language of the rule,
the moving party bears the two-fold burden of showing that there is “no genuine issue as
to any material facts,” and that he is “entitled to judgment as a matter of law.” VegaRodríguez v. Puerto Rico Tel. Co., 110 F.3d 174, 178 (1st Cir. 1997).
After the moving party has satisfied this burden, the onus shifts to the resisting
party to show that there still exists “a trial worthy issue as to some material fact.” CortésIrizarry v. Corporación Insular, 111 F.3d 184, 187 (1st Cir. 1997).

A fact is deemed

“material” if it potentially could affect the outcome of the suit. Id. Moreover, there will
only be a “genuine” or “trial worthy” issue as to such a “material fact,” “if a reasonable
fact-finder, examining the evidence and drawing all reasonable inferences helpful to the
party resisting summary judgment, could resolve the dispute in that party’s favor.” Id.
At all times during the consideration of a motion for summary judgment, the Court must
examine the entire record “in the light most flattering to the non-movant and indulge all

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reasonable inferences in the party’s favor.” Maldonado-Denis v. Castillo-Rodríguez, 23
F.3d 576, 581 (1st Cir. 1994).
The First Circuit Court of Appeals has “emphasized the importance of local rules
similar to Local Rule 56 [of the District of Puerto Rico].” Hernández v. Philip Morris
USA, Inc., 486 F.3d 1, 7 (1st Cir. 2007); see also, Colón v. Infotech Aerospace Servs., Inc.,
869 F.Supp.2d 220, 225-226 (D.P.R. 2012). Rules such as Local Rule 56 “are designed
to function as a means of ‘focusing a district court's attention on what is -and what is notgenuinely controverted.’ ” Hernández, 869 F.Supp.2d at 7 (quoting Calvi v. Knox County,
470 F.3d 422, 427 (1st Cir. 2006)). Local Rule 56 imposes guidelines for both the movant
and the party opposing summary judgment. A party moving for summary judgment
must submit factual assertions in “a separate, short, and concise statement of material
facts, set forth in numbered paragraphs.” Loc. Rule 56(b). A party opposing a motion for
summary judgment must “admit, deny, or qualify the facts supporting the motion for
summary judgment by reference to each numbered paragraph of the moving party’s
statement of facts.” Loc. Rule 56 (c).

If they so wish, they may submit a separate

statement of facts which they believe are in controversy.

Facts which are properly

supported “shall be deemed admitted unless properly controverted.” Loc. Rule 56(e);
P.R. Am. Ins. Co. v. Rivera-Vázquez, 603 F.3d 125, 130 (1st Cir. 2010) and Colón, 869
F.Supp.2d at 226. Due to the importance of this function to the summary judgment
process, “litigants ignore [those rules] at their peril.” Hernández, 486 F.3d at 7.

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FINDINGS OF FACT
Based on the parties’ submissions1, the Court makes the following findings of fact:
1. Plaintiff Joe M. Kahan was born in Mexico City, Mexico, and is currently a citizen
of the State of California, married to Plaintiff Kristen McCaffrey, with residence,
domicile and intention to live in Santa Monica, California. P. Exhibit III, paragraph
1, at page 3; P. Exhibit IV, 4:15; 5:1; 6:7-8.
2. Plaintiff Kristen McCaffrey, Plaintiff Kahan’s spouse, was born in Concord,
Massachusetts and is currently a citizen of the State of California, with residence,
domicile and intention to live in Santa Monica, California. P. Exhibit III, paragraph
1, page 3; P. Exhibit V, 6:18-25; 7:1-13.
3. Plaintiffs Kahan and McCaffrey were married on May 13, 2012. P. Exhibit IV, 6:78; P. Exhibit V, 6:22-25.
4. Defendant Posadas owns and operates the Condado Plaza Hilton Hotel. On May
5, 2013, Posadas was in control and was responsible for the upkeep or maintenance
of the pathway and tiled stairs in front of Starbucks at the Ocean Tower, on the east
side of the Condado Plaza Hilton Hotel, where Plaintiff’s slip and fall incident
reportedly occurred. P. Exhibit II, paragraphs 5-6, at p. 1; Exhibit VI-A, Request
No. 1, at p. 4; P. Exhibit VI-B, Response No. 1, at p. 1.
5. On May 4, 2013, Plaintiffs came to Puerto Rico on a weeklong vacation/surf trip.
Upon arrival, they rented a car to travel the next day to the town of Rincón, yet

The Court reminds the parties the averments contained in the Complaint are not evidence, they are simply
allegations. Therefore, no facts citing to the Complaint as evidence were considered.
1

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because they arrived at night, they stayed in a small hotel in the Condado-San Juan
area named Le Consulat. P. Exhibit III, paragraph 20, at p. 14; P. Exhibit IV, 15:79; P. Exhibit V, 9:1-13.
6. The next morning, May 5, 2013, Plaintiffs decided to take a walk around the
Condado Area before leaving for Rincón. P. Exhibit IV, 15:4-5; P. Exhibit V, 9:1013.
7. Plaintiffs walked towards the Starbucks coffee shop located at the premises of the
Condado Plaza Hilton Hotel to grab a cup of coffee. Since it began raining outside,
once they reached Starbucks, they decided to stay inside the coffee shop and wait
for the shower to pass.

P. Exhibit IX, at p. 4; P. Exhibit IV, 15:11-21; P. Exhibit,

10:12-20.2
8. The Starbucks coffee shop at the Condado Plaza Hilton is located in the north tower
of the hotel, just east of the driveway that leads up the lobby. D. Exhibit 2, ¶2.
9. The Starbucks coffee shop faces Ashford Avenue, and its entrance/exit leads to the
exterior, where there is a set of outdoor steps that lead to the sidewalk on the
north side of Ashford Avenue. D . Exhibit 2, ¶ 3.
10. While Plaintiffs were still inside Starbucks, it stopped raining.

P. Exhibit IV,

15:11-19.

2
The parties spend a great deal of time arguing over whether it was raining lightly or normally, and how much
time Plaintiffs spent inside the Starbucks. These facts are not material to establish that the area where Plaintiff fell was
wet when he stepped on it, a fact which both parties agree on.

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11. As Plaintiffs approached the stairs to get back on the street level, Plaintiff Kahan
slipped on or near the tiled stairs, hyper-extending his right knee as he heard it
pop, and fell in excruciating pain to the ground, landing awkwardly on his back at
the bottom of the stairs. P. Exhibit IV, 16:1-25; 17:21-24; P. Exhibit V, 13:2-14.

3

12. Otilio Ramos, the hotel’s head of security, arrived at the scene some thirty (30)
minutes later. P. Exhibit V, 16:1, 14-15.
13. The Condado Plaza Hilton Hotel is responsible for maintaining its common areas,
including the area in front of the Starbucks where Plaintiff Kahan’s accident
occurred. P. Exhibit XI, paragraph 19, at p. 5 P. Exhibit VI-A, Request No. 1, at p.
4; P. Exhibit VI-B, Response No. 1, at p. 1.
14. At the time of the accident, the platform and the tiled stairs were wet. P. Exhibit
IV, 16:10-11.
15. When Plaintiff Kahan stepped out of the Starbucks, he noticed it was wet and he
knew it was wet. D. Exhibit 1, 62:3-13.
16. In the moments leading up to his fall, Plaintiff Kahan was not paying attention to
the way he was walking. D. Exhibit 1, 16:8-9.
17. The area in front of the Starbucks and the steps between the Starbucks and the
sidewalk along Ashford Avenue have tiles.

The stairs which lead up to the

The parties also argue whether Plaintiff Kahan slipped on the first stair or on the landing, as he approached
the first stair. For purposes of this motion, the Court will simply say that he slipped on or near the first stair, as it is
immaterial for summary judgment whether he slipped on the landing or on the stair. Both the landing and the stair
were wet and both had the same tile, which both parties agree on.
3

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Starbucks did not have adhesive anti-skid strips in place.

P. Exhibit III,

paragraph 2, at p. 4; D. Exhibit 2, Exhibit A.
18. The steps between the Starbucks and the street level where Plaintiff Kahan
reportedly fell have a handrail. D. Exhibit 2, ¶ 3, 4 and 5.
19. When Plaintiff Kahan fell, he was not reaching or holding the handrail on the steps.
D. Exhibit 1, 18:14-25; 19:1-2.
20. When Plaintiff Kahan fell, he was not holding anything in his hands that would
have prevented him from reaching or holding the handrail on the steps. D. Exhibit
1, 19:16 -18.
21. When Plaintiff Kahan slipped and fell, he was wearing flip-flops which were most
likely made of plastic. D. Exhibit 1, 19:19-25; 20:1-5.
22. The tiles installed in the area object of this fall are “Series Kronos” tiles. D. Exhibit
2, ¶ 6.
23. As per the technical characteristics provided by the manufacturer, the “Series
Kronos” tiles installed in the area are marketed as tiles intended for outdoor or
exterior use. D. Exhibit 2, ¶ 6, and Exhibit B thereto.
24. Posadas admits that “it is general knowledge that most tile surfaces, when wet,
offer less friction that a dry tile surface” and that therefore “the Condado Plaza
knew, as did Plaintiffs, that the tiled stairs in front of Starbucks at the Ocean Tower,
where it was reported Plaintiff Kahan had fallen, offers less friction when wet,

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compared to when it is dry.” P. Exhibit VI-A, Request No. 6, at p. 4; and P. Exhibit
VI-B, Response No. 6, at pp.1-2.
25. There are other stairs on their premises with the same tiles as the area where
Plaintiff slipped, and are located on the same street level and side of the Ocean
Tower where Plaintiff’s accident occurred. These other stairs do have anti-skid
adhesive tape in place. P. Exhibit VI-A, Requests Nos. 7 & 8, at pp. 4-5; P. Exhibit
VI-B, Responses Nos. 7 & 8, at p. 2.
26. On May 5, 2013, Posadas had no written Standard Operating Procedure in effect
for the prevention of slip, trips and falls of visitors at its premises, or for the
maintenance or upkeep of the Condado Plaza Hilton Hotel’s tiled floors where
Plaintiff’s incident reportedly occurred. P. Exhibit VI-A, Requests Nos. 3 & 4, at
p. 4; P. Exhibit VI-B, Responses Nos. 3 & 4, at p. 2.
27. On May 5, 2013, Posadas had no training manual or handbook in effect for its
employees or housekeeping department on how to clean, dry or maintain the
hotel’s tiled floors. P. Exhibit VI-A, Request No. 5, at p. 4; P. Exhibit VI-B,
Response No. 5, at p. 2.
28. No employee or agent of Posadas witnessed the occurrence of Plaintiff’s slip and
fall. P. Exhibit VI-A, Requests Nos. 10 & 11, at p. 5; P. Exhibit VI-B, Responses Nos.
10 & 11, at p. 2.
29. Plaintiffs reported Plaintiff Kahan’s incident to Otilio Ramos on May 5, 2013, at
11:45 a.m. Plaintiff Kahan’s Witness Statement was completed at 12:25 p.m. P.

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Exhibit VI-A, Requests Nos.13-15, at p. 5; P. Exhibit VI-B, Responses Nos. 13-15,
at p. 2.
30. After filing an incident report at the Condado Plaza Hotel with Otilio Ramos,
Plaintiffs went to the Hoare Municipal Hospital, where x-rays taken at the
Emergency Room confirmed Plaintiff Kahan had not fractured any bones. P.
Exhibit III, paragraph 7, at p. 7 and paragraph 11, at p. 9; P. Exhibit IV, 23:11-24;
P. Exhibit V, 16:22-24; 23:1-6.
31. At the Hospital, Plaintiff Kahan was given injections, a painkiller, an antiinflammatory, a prescription and a brace, and told to follow-up on his injury with
his primary physician. P. Exhibit III, paragraph 7, at p. 7 and paragraph 11, at p. 9;
D. Exhibit IV, 23:23-24; 24:1-14.
32. When released from the emergency room, Plaintiffs returned to their hotel to pick
up their car and headed to Rincón as originally planned. The condo they had
rented at Casa de Rincón, however, was three (3) stories high and due to the pain
Plaintiff still felt in his right knee, he could not climb the stairs to get to their room.
P. Exhibit III, paragraph 20, at p. 14; P. Exhibit IV, 24:15; 25:16; P. Exhibit V, 17:21;
19:16-25.
33. Plaintiffs were forced to cancel the remainder of their reservation at Casa de
Rincón and relocate to a Wyndham Hotel in the Fajardo Area, spending more
money on this alternate lodging option to accommodate Plaintiff Kahan’s pain and
injuries. Plaintiff Kahan spent the rest of his trip with a knee brace and under pain

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medications, unable to enjoy the vacation with his wife to the fullest, as originally
planned. P. Exhibit III, paragraph 20, at p. 14; P. Exhibit IV, 24:15-25; 25: 1-23;
P. Exhibit V, 20:1-23.
34. After six (6) days of excruciating pain and limited mobility, Plaintiffs finally flew
back to Los Angeles, California, where Plaintiff Kahan visited a chiropractor who
suggested he get an MRI of his right knee.
sessions, Plaintiff Joe Kahan got an MRI.

After three (3) physical therapy

All this was paid out of pocket. P.

Exhibit III, paragraph 11, at p. 9; P. Exhibit IV, 29:5-7; 30:23-25; 31:1-4; P. Exhibit
X, at pp. 2 & 5.
35. The MRI performed on May 15, 2013 of Plaintiff Kahan’s right knee revealed he
had suffered a “complete ACL tear with prominent posterior tibial bone bruise and
a moderate joint effusion. Medial collateral ligament sprain [wa]s present as well.”
P. Exhibit XIV, at p. 2 (Section titled “Impression”).
36. Plaintiff Kahan also consulted Dr. Babak Samimi, an Orthopedic Surgeon and his
treating physician, who after examining the Plaintiff and the MRI, concluded the
former had: “(1) a right knee anterior cruciate ligament tear [ACL Tear], and (2) a
right knee medial meniscus tear.” Considering Plaintiff Kahan’s age and activity
level, surgery was recommended as it would allow Plaintiff to return to contact
sports and more strenuous activities, and would prevent further pain and
instability in his knee. P. Exhibit IV, 39:9-25; 10-1-3; P. Exhibit XV, paragraphs
1 & 3, at p. 4.

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37. The approximate cost of surgery of Plaintiff Kahan’s injury is approximately Sixty
Thousand Dollars ($60,000.00), with a six (6) to nine (9) month post-operative
rehabilitation period. Plaintiff plans to undergo surgery with Dr. Babak Samimi
once he figures out how to finance the same. P. Exhibit XV, paragraph 3, at p. 4
(Section on “Treatment Recommendations”); P. Exhibit IV, 44:1-14; 56:24-25;
57:22-25; 58:1-7.
38. Before the accident, Plaintiff Kahan had an active lifestyle. However, the injury
sustained affects and restricts his performance in every activity that requires joint
movement, such as surfing and hiking. The injuries also restrict his day-to-day
activities such as walking, sitting for long periods of time and even sleeping. P.
Exhibit III, paragraphs 6 & 15, at pp. 6 & 12; D. Exhibit IV, 9:17-25; 12:10-17; 48:249.
39. Plaintiff Kahan also initiated psychotherapy with Dr. Stacie Cox in July, 2013, to
overcome, among other issues, his fears of participating in certain sports or
activities due to his injury. P. Exhibit III, paragraph 14, at p. 11; P. Exhibit IV,
49:10-22; 51:1-21; P. Exhibit XVI, paragraph 1, at p. 1.
40. The intense pain caused by the injury, the limited mobility of the right knee, and
the pile-up of medical expenses have unnecessarily stressed Plaintiffs’ marriage.
They sometimes argue and no longer enjoy certain physical activities together like
they use to prior to the incident. P. Exhibit III, paragraph 6, at p. 6; P. Exhibit IV,
54:24-25; 55:1-25.

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41. Plaintiff Kristen McCaffrey was with her husband at the moment he slipped and
fell, witnessing the accident and his emotional distress. P. Exhibit III, paragraphs
4 & 6, at pp. 5-6; P. Exhibit V, 8:25; 9:1-2; 11:20-25; 12:1-5; 13:2-14; 15:4-16.
42. Plaintiff McCaffery’s vacation in Puerto Rico was likewise ruined as the accident
occurred on the first day of their trip. Furthermore, she no longer enjoys an active
lifestyle in the company of her husband due to the injury he sustained. P. Exhibit
III, paragraphs 4 & 6, at pp. 5-6; P. Exhibit V, 19:16- 25; 22:17-23.
LEGAL ANALYSIS
It is black letter law that a Court sitting in diversity, as here, must apply Puerto
Rico law to all substantive matters and is “bound by the teachings of the state’s highest
court.” N. Am. Specialty Ins. Co. v. Lapalme, 258 F.3d 35, 38 (1st Cir. 2001). Under Puerto
Rico law, “a person who by an act or omission causes damage to another through fault or
negligence shall be obliged to repair the damage done.” P.R. Laws Ann., tit. 31, § 5141. In
order to establish liability due to negligence, a plaintiff must show that the defendant: (1)
owed a duty to the plaintiff; (2) the defendant breached that duty, and (3) that the plaintiff
suffered damages, and that those damages were caused by the breach of duty (i.e.,
proximate cause). Calderón-Ortega v. U.S., 753 F.3d 250 (1st Cir. 2014).
A defendant’s duty is defined by the general rule that one must act as would a
prudent and reasonable person under the circumstances. Quiles v. United States, 877
F.Supp. 57 (D.P.R. 1995) (quoting Oliveros v. Abreu, 101 P.R.R. 293 (1973)). It has been
established that “. . . foreseeability is a central issue in these cases, as it is an element of

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both breach of duty and proximate cause.”

Vázquez-Filippetti v. Banco Popular de

Puerto Rico, 504 F.3d 43, 49 (1st Cir. 2007); see also Woods–Leber v. Hyatt Hotels of
P.R., 951 F.Supp. 1028, 1036 (D.P.R. 1996), aff'd, 124 F.3d 47 (1st Cir.1997) (stating that
foreseeability is a component of breach of duty and proximate cause). Foreseeability is
a component of the breach [element] because “a defendant only breaches his duty if he
acted (or failed to act) in a way that a reasonably prudent person would foresee as creating
undue risk.” Vázquez-Filippetti, 504 F.3d at 49.
Therefore, Plaintiffs must show the foreseeable risks created by Defendant’s acts
or omissions. Once Plaintiffs have demonstrated that Defendant was negligent (and
thus, breached the duty of care), they must then demonstrate that Defendant’s negligence
actually caused them injuries and Defendant could have reasonably foreseen that the
injuries would result from its acts or omissions. Marshall v. Pérez-Arzuaga, 828 F.2d 845,
849 (1st Cir. 1987) (citing Jiménez v. Pelegrina, 112 P.R. Dec. 881, 885 (1982)).
Here, the first element is readily met: one who operates a business undeniably
owes a duty of reasonable care to business invitees. See Cotto v. Consol. Mut. Ins. Co.,
16 P.R. Offic. Trans. 786, 793, 116 D.P.R. 644 (P.R. 1985); see also, Torres v. Kmart, 233
F.Supp.2d 273, 278 (D.P.R. 2002) (“the business owner has a duty to keep said
establishment in a safe condition so that the clients do not suffer harm or damage”).
The main analysis in this case is centered on the next element, breach of that duty:
a business invitee who alleges such a breach must show “that the injury was reasonably
foreseeable (and, thus, could have been avoided had the defendant acted with due care).”

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Woods-Leber v. Hyatt Hotels of Puerto Rico, Inc., 124 F.3d 47, 50-51 (1st Cir. 1997); see
also Coyne v. Taber Partners I, 53 F.3d 454, 459-60 (1st Cir. 1995). It follows, therefore,
that “[i]n a premises liability case, fault ordinarily depends on knowledge.” NievesRomero v. U.S., 715 F.3d. 375, 379 (1st Cir. 2013); see also Woods-Leber, 124 F.3d at 50
n. 5 (noting that “Puerto Rico law ordinarily requires a demonstration of the owner’s or
occupier’s actual or constructive knowledge of the harm-causing condition”); and Mas v.
United States, 784 F. Supp. 945, 948 (D.P.R. 1992) aff'd, 984 F.2d 527 (1st Cir. 1993)
(quoting Goose v. Hilton Hotels Int'l, Inc., 79 D.P.R. 523 (1956)) (“there can be no liability
for harm resulting from dangerous conditions of which [the business owner] does not
know, and which a reasonable inspection would not have discovered, or from conditions
from which no unreasonable risk was to be anticipated”).
Cases premised on the existence of a dangerous condition often arise from a “slipand-fall,” caused by a wet or slippery floor, as in the present case, and posit that that the
business owner was negligent in permitting the condition to remain because it is
foreseeable that a wet floor is likely to cause injury. “Similar claims include stairway
railings in disrepair, burned-out exterior or security lights in a dangerous area, and
unsturdy or unstable floors. In any of these circumstances, the property itself, if it were
in pristine condition, would be safe, but some act or omission by the owner has created
dangers or risks to the property’s visitors.” Vázquez-Filippetti, 504 F.3d at 50. Normally,
then, the issue is whether defendant had sufficient time to realize that there was

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dangerous liquid on the floor or whether it used due diligence or care to carry out
reasonable inspections of the premises for hazards.
Turning to the instant case, the rain that fell wet the area in question, which had
no roof as it was located outside the hotel in the open air, was exposed to rainwater and
the elements on a regular basis, and got wet every time it rained in the Condado area.
There can be no doubt that Defendant knew of this condition. The issue then, is whether
Defendant acted reasonably in leaving such an exposed area, the front on the entrance to
the coffee shop, where patrons walk in and out of the shop, without some type of slip
prevention mechanism. This is the crux of Plaintiffs’ argument, as they aver the area,
both the platform and the stairs, remained wet after the rain shower because the hotel
failed to dry it. There were no cautionary signs in place, nor did the steps have any antiskid adhesive tape on, furthering the dangerous condition in the area, and in direct
contrast to the nearby steps close to where Plaintiff Kahan fell, which had the same tiles,
and did have anti-skid adhesive tape placed on them. Plaintiffs argue that this, coupled
with the fact that “it is foreseeable that a wet floor is likely to cause injury”, is
determinative evidence that renders Defendant liable for this accident.
Defendant says it cannot be faulted. Defendant posits it had no duty to warn
precisely because Plaintiffs knew the area was wet, and indeed, Plaintiffs admit they went
into the coffee shop because it was raining. Furthermore, Defendant avers Plaintiffs lack
evidence that the tile was inherently dangerous without the anti-skid strips, and in its

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defense, points to the manufacturer’s declaration of intended use for the tile, which shows
that it was intended for both indoor and outdoor use.
In the end, both parties fail. A genuine issue of material fact exists if a reasonable
jury could find for either party on the contested matter. Cochran v. Quest Software, Inc.,
328 F.3d 1, 6 (1st Cir. 2003). Here, the Court finds that a reasonable jury could find
Plaintiff Kahan’s accident was foreseeable to him simply because it is common knowledge
that a wet area offers less resistance or traction to a person walking on it (indeed, both
parties urge the Court to accept this tidbit of wisdom as judicial knowledge) and he should
have been more careful. By the same token, the Court also determines that a jury could
also find that this accident was foreseeable to Defendant Posadas simply because it had
placed anti-skid strips on precisely the same tile not far from where Plaintiff Kahan fell,
thus leading to the reasonable inference that it foresaw that someone could slip on the
surface.
In addition to this, other questions of fact remain unanswered, to wit: Should
Kahan have been more watchful, knowing the area was wet? How watchful was he, as he
said he was “not paying attention to the way he was walking”4 before he fell? Was it
reasonable for him to have held the handrail as he stepped down? Was it reasonable for
Defendant Posadas to have dried the area, seeing it was wet or was it reasonable for the
tile to have dried on its own because it was outdoors? In other words, did Defendant
Posadas act as a reasonably prudent person under the circumstances presented in this

4

See D. Exhibit 1, p. 16:8-9.

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case? How much time elapsed between the time it stopped raining and Plaintiffs left the
Starbucks? Would Defendant Posadas have dried the area in time to prevent this
accident?
Clearly these are all questions proper for a jury, and because foreseeability is a
central issue in premises liability claims, as it is an element of both breach of duty and
proximate cause5, the resolution of this issue could go either way. “Not only ordinary fact
questions, but also evaluative applications of legal standards (such as the concept of legal
foreseeability) to the facts are properly jury questions. In any case where there might be
reasonable difference of opinion as to evaluative determinations . . . the question is one
for the jury.” Marshall, 828 F.2d at 849 (quoting Springer v. Seamen, 821 F.2d 871, 876
(1st Cir. 1987) and Prosser & Keeton on Torts 320–21 (W. Keeton 5th ed. 1984); see also
Pabón Escabí v. Axtmayer, 90 P.R.R. 20, 25 (1964) (noting whether a defendant is liable
under a premises liability claim depends on the facts and circumstances of each case).
Therefore, the Court cannot enter summary judgment for either party.
In addition to the foreseeability issue, the Court finds there are additional material
factual controversies that preclude summary disposition of this case.

For instance,

whether signs warning of the wet condition were posted in the area, and how the area
where the non-skid adhesive was placed differed, if at all, from the area where Plaintiff
fell are very relevant to this controversy. Equally important, issues that are properly
presented through expert testimony, such as the standard for hand rails and the friction

5

See Vázquez-Filippetti, 504 F.3d at 49.

Joe Kahan, et al v. Hilton Worldwide, Inc., et al
Civil No. 14-1355(CVR)
Opinion and Order
Page 18
_________________________

coefficient for this particular tile, also prevent summary disposition of these claims.
These all evidentiary and credibility matters that only a jury can evaluate and answer.
Thus, it is the jury who must determine whether both parties’ actions were reasonable
and foreseeable in light of the evidence that will be presented to them.
For all the aforementioned reasons, both Motions for Summary Judgment (Docket
Nos. 33 and 34) are DENIED.
CONCLUSION
In view of the foregoing, the Court hereby DENIES both Motions for Summary
Judgment.6 (Docket Nos. 33 and 34).
IT IS SO ORDERED.
In San Juan, Puerto Rico, on this 2nd day of December, 2015.
S/CAMILLE L. VELEZ-RIVE
CAMILLE L. VELEZ RIVE
UNITED STATES MAGISTRATE JUDGE

6 In light of the instant ruling, the Court strongly encourages the parties to carry out settlement negotiations
in this case. The controversies are simple and should be easy to ascertain and resolve. This would serve to conserve
scarce judicial time and resources. The parties are granted thirty (30) days to conduct further settlement negotiations
and jointly inform the Court of the outcome. If no settlement is reached, the Pre-Trial/Settlement Conference and the
Jury Trial will be promptly scheduled.