Smith et al v. Condado Duo La Concha SPV, LLC et al

Filing 134

MEMORANDUM AND ORDER: Adopting 119 "Report and Recommendation." Accordingly, the motion for summary judgment at Docket No. 81 is granted and the complaint dismissed. Judgment shall be entered accordingly. Signed by Judge Pedro A. Delgado-Hernandez on 12/18/2017.(LMR)

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

CIVIL NO. 15-1504 (PAD)

CONDADO DUO LA CONCHA SPV,
LLC, et al.,
Defendants.

MEMORANDUM AND ORDER
Delgado-Hernández, District Judge.
This is a damages action against Condado Duo La Concha SPV, LLC and Condado Duo
La Concha Hotel Tower SPV, LLC (collectively “La Concha”) under Article 1802 of the Puerto
Rico Civil Code, P.R. Laws Ann. tit. 31 § 5141. Before the court is La Concha’s motion for
summary judgment (Docket No. 81), which plaintiffs opposed (Docket No. 91). La Concha replied
(Docket No. 97) and plaintiffs surreplied (Docket No. 104). The motion was referred to U.S.
Magistrate Judge Bruce J. McGiverin, who issued a Report and Recommendation (“R&R”)
(Docket No. 119) recommending that the motion be granted and the case against La Concha
dismissed. Id. Plaintiffs objected to the R&R (Docket No. 129). La Concha responded to
plaintiffs’ objections (Docket No. 133). For the reasons explained below, the R&R is ADOPTED
IN TOTO and the case DISMISSED.
I.

REFERRAL

A district court may refer a pending motion to a magistrate judge for a report and
recommendation. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); Loc. Civ. Rule 72. Any
party adversely affected by the report and recommendation may file written objections within

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fourteen days of being served with the magistrate judge’s report. Loc. Civ. Rule 72(d). See 28
U.S.C. § 636(b)(1). A party that files a timely objection is entitled to a de novo determination of
“those portions of the report or specified proposed findings or recommendations to which specific
objection is made.” Ramos-Echevarria v. Pichis, Inc., 698 F.Supp.2d 262, 264 (D.P.R. 2010);
Sylva v. Culebra Dive Shop, 389 F.Supp.2d 189, 191-92 (D.P.R. 2005) (citing United States v.
Raddatz, 447 U.S. 667, 673 (1980)).
II.

DISCUSSION

a. The Report and Recommendation.
On May 4, 2014, Mr. Mark Smith rode Elevator 2 at the Renaissance San Juan Resort in
Condado, Puerto Rico. As he was stepping off, the elevator allegedly jerked upwards, causing him
to stumble and injure his back. He and his wife sued La Concha and Otis – the elevator
maintenance company – for recovery of damages. 1 The claims against Otis were dismissed
(Docket No. 120), and on October 17, 2016, La Concha moved for summary judgment (Docket
No. 81).
Plaintiffs contend that La Concha was negligent in the maintenance of Elevator 2 (Docket
No. 91 at p. 6. 2 On this formulation, the core issue focuses on whether La Concha knew or should
have known that on the day of the incident the elevator was dangerous and could cause injuries
such as those plaintiffs allege to have experienced. The U.S. Magistrate Judge answered the

1 Initially, they sued La Concha. They were granted leave to amend the complaint to include Otis as a defendant. For a more detailed
background of the case and the claims against Otis, see Memorandum and Order at Docket No. 120.
2

In plaintiffs’ own words “[f]rom the moment of the filing of the original Complaint in this case (DN 1), it was clear that Mark
and Teresita Smith’s claim was based on the existence of a dangerous condition on the Hotel’s premises, rather than on allegations
of negligent design or productions liability;” and that their case “. . .is not a case based on negligent design or products liability,
but rather one based on the dangerous condition of a faulty working elevator that was repeatedly giving problems that needed to be
reported and handled and would always be put back in use, this making it foreseeable that it could have caused problems again, as
was the case here” (Docket No. 91 at pp. 6-7).

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question in the negative and accordingly recommended that the claims against La Concha be
dismissed (Docket No. 119 at p. 7).
First, the Magistrate Judge excluded for lack of authentication some of plaintiffs’ exhibits.3
Id. at pp. 2-4). He reasoned that, although the medical and business records are admissible under
the hearsay exceptions set in Fed.R.Evid. 803(4) and 803(6), the exhibits were not authenticated
even after La Concha challenge them on that basis. Id. at p. 3. As such, they were inadmissible
and not considered as part of the summary judgment record. Id. at pp. 3-4.
Second, the Magistrate Judge concluded plaintiffs did not prove that La Concha had actual
knowledge of the elevator’s dangerous condition. Id. at p. 6. While plaintiffs relied on the elevator
maintenance company’s statement that Elevator 2 was the source of a higher number of yearly
service calls than the industry average, the Magistrate Judge expressed that no evidence was
presented on whether La Concha had become aware of the statement or as to how the information
would put La Concha on notice that Elevator 2 was a hazard. Id. at pp. 6-7.
Third, the Magistrate Judge found that plaintiffs failed to show that La Concha had
constructive knowledge of the allegedly dangerous condition. Id. at p. 6. He observed that Mr.
Smith’s statement to the effect that he recalled seeing an “Out of Order” sign on each of the three
elevators in the main lobby of the Hotel (although not at the same time), was insufficient to
establish constructive knowledge. Id. Thus, the mere fact the elevator had been taken out of
service at some point during the weekend prior to the incident, did not mean that La Concha should
have known that the elevator was dangerous. Id.

3

The excluded exhibits consist of some medical and business records, the Incident & Loss Report, a Statement by John Maldonado
(Hotel Security Officer), and a TripAdvisor review (Docket No. 119 at pp. 2-3). TripAdvisor is a travel site that enables travelers
to plan and book trips by providing reviews and opinions of travel listings worldwide to help people decide where to stay, how to
fly, what to do and where to eat.

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Fourth, the Magistrate Judge observed plaintiffs offered no evidence that La Concha had
an unreasonable prevention policy or that it failed to implement the policy. Id. To the contrary,
any time there was a problem with the elevator, La Concha: (i) took the elevator out of service and
then called the elevator maintenance company; and (ii) kept the elevator out of operation until the
maintenance company’s technician determined that it was working. Id. Further, there was no
proof that the elevator had been in a hazardous condition “for an unreasonable or excessive length
of time.” Id. (quoting, Pereyra-Carrasco v. United States, 2015 WL 6133024, *7 (D.P.R. October
14, 2015)(to show constructive knowledge, “a plaintiff must prove either the existence of the
dangerous condition for an unreasonable or excessive length of time or, in the absence of evidence
regarding time, the owner’s insufficient prevention policy or failure to implement the
policy”)(other internal citations omitted). In that sense, evidence that the elevator was out of
service at some point during the three days before the incident did not prove that the elevator had
been dangerous for an excessive length of time. Id.
b. Plaintiffs’ objections.
Plaintiffs argue that the Magistrate Judge’s conclusions are incorrect. In essence, they
point out that: (i) because La Concha’s motion for summary judgment questioned the sufficiency
of their expert witness report to support liability, once they announced their decision to withdraw
their expert, the Magistrate Judge “should have entertained no further argument on favor of the
hotel’s request for summary judgment and La Concha’s [motion] should have been denied”
(Docket No. 129 at pp. 2-3); (ii) La Concha did not argue that plaintiffs’ exhibits lacked
authentication, and without any such challenge, the Magistrate Judge should have considered the
exhibits (id. at pp. 4-6); and (iii) there is evidence to show that La Concha had constructive
knowledge of the elevator’s dangerous condition and that it posed a danger to hotel guests and

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staff (id. at pp. 9-14). In support, they submit four exhibits that they did not use in opposing La
Concha’s motion for summary judgment. 4
Plaintiffs’ decision to withdraw their expert did not make La Concha’s motion for summary
judgment moot. 5 La Concha’s motion goes beyond exclusion of Dr. Carr’s report, questioning
plaintiffs’ ability to meet their burden in light of the uncontested facts here (Docket No. 97 at pp.
3-10 and Docket No. 104 where plaintiffs so acknowledged). 6 In like manner, the exclusion of the
unauthenticated exhibits is correct. Plaintiffs do not question this determination, instead claiming
that because La Concha “did not argue” the exhibits lacked authentication, the Magistrate Judge
should have considered them (Docket No. 129 at pp. 4-8).

But the contention overlooks

defendants’ reply (where La Concha brought the matter before the Magistrate Judge), and is
contrary to the well-settled norm that documents supporting or opposing summary judgment must
be properly authenticated.
Finally, there is no evidence that La Concha knew or should have known that the elevator
Mr. Smith rode was dangerous. The Magistrate Judge’s maintenance record analysis is right on

4 After issuance of the R&R, plaintiffs asserted to have “realize[d] the need for the [c]ourt to consider this proof, which was
mentioned but not specifically introduced as part of Plaintiffs’ opposition and sur-reply.” Id. at p. 11. In this connection, they filed
an excerpt of the 30(b)(6) deposition of La Concha Hotel. However – with the exception of page 36 – the pages submitted as part
of Exhibit 20 were not the ones plaintiffs now submit in support of their objections. They so admitted, asking the court to consider
them as part of their objections. And that is also true with respect to the other two new exhibits. Although portions of the deposition
of Mr. Eduardo Rivera (Docket No. 129, Exh. 4) were submitted as part of the summary judgment record (Docket Nos. 86-3 and
92-21), the pages originally submitted are not the ones plaintiffs now refer to in support of their objections. In its discretion, the
court will consider these exhibits as part of its analysis. See, Local Civil Rule 72(d) (so authorizing). Yet the exhibits do not alter
the Magistrate Judge’s findings.
5

As the Magistrate Judge correctly explained, La Concha initially sought to exclude the testimony of plaintiffs’ expert, Dr. Stephen
Carr (Docket No. 81). Following defendants’ request, however, plaintiffs withdrew doctor Carr as their expert. Therefore, the
Magistrate Judge did not address La Concha’s arguments regarding doctor Carr in the R&R (Docket No. 119 at p. 4 n.2).

6

In fact, in their surreply plaintiffs responded to defendants’ additional contentions in support of summary judgment and explained
why, in their view, they could still show that La Concha was negligent even without their expert (Docket No. 104 at pp. 7-10).

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point. And the fact that the hotel received some modernization proposals regarding the elevators
does not mean that La Concha was put on notice that the elevator was a hazard. 7
III.

CONCLUSION

Having made an independent, de novo, examination of the entire record, the Magistrate
Judge’s findings are well supported in the record and the law. For the same reason, the court
ADOPTS in toto the R&R, and, accordingly, GRANTS La Concha’s Motion for Summary
Judgment and DISMISSES the complaint. Judgment shall be entered accordingly.
SO ORDERED.
In San Juan, Puerto Rico, this 18th day of December, 2017.
s/Pedro A. Delgado-Hernández
PEDRO A. DELGADO-HERNÁNDEZ
United States District Judge

7

The proposals recommend upgrades, including addition of one hundred pounds of weight to re-balance Elevators 1 and 2, and
600 pounds to rebalance Elevator 3 (Docket No. 129, referring to Exh. 3). The proposals do not state that La Concha was informed
or required to re-balance the elevators because they were dangerous. Additionally, plaintiffs do not provide any explanation as to
how the modernization and rebalance of the elevators show La Concha’s actual knowledge that Elevator 2 was a hazard or whether
this was required as part of the regular maintenance and update given to elevators consistent with industry standards.