DeMario et al v. Lamadrid-Maldonado et al
Filing
311
OPINION AND ORDER: For the reasons set forth in this Opinion and Order, the Puerto Rico Electric Power Authority's Motion for Summary Judgment at Docket No. 252 is GRANTED. Plaintiffs' claims against the Puerto Rico Electric Power Authority are DISMISSED WITH PREJUDICE. Signed by Judge Raul M. Arias-Marxuach on 1/18/2023.(mrr)
Case 3:16-cv-02897-RAM Document 311 Filed 01/18/23 Page 1 of 23
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
DINO DEMARIO, et al.
Plaintiffs
v.
CIVIL NO. 16-2897(RAM)
ANTHONY LAMADRID-MALDONADO, et al.
Defendants
OPINION AND ORDER
RAÚL M. ARIAS-MARXUACH, District Judge
This matter comes before the Court on co-defendant Puerto
Rico
Electric
Power
Authority’s
(“PREPA”)
Motion
for
Summary
Judgment. (Docket Nos. 252 and 259-1). Having reviewed the parties’
submissions, the Court GRANTS PREPA’s Motion for Summary Judgment
at Docket No. 252. (Docket Nos. 264, 265, 275, and 276).
I.
BACKGROUND
Dino DeMario and Cheryl Steele (collectively "Plaintiffs")
are the parents of the late Nicholas DeMario. (Docket No. 99 ¶¶ 34). On November 1, 2015, Nicholas DeMario was assisting his friends
with pushing their vehicle, a Mazda Protege with license plate
number 1KG-492, which had suffered a mechanical breakdown on a
road in the Municipality of Hormigueros. (“Hormigueros” or the
"Municipality"). Id. ¶ 16. Anthony Lamadrid-Maldonado (“Lamadrid”)
was driving a Mitsubishi Eclipse with license plate number GLG-
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Civil No. 16-2897 (RAM)
2
871 in the same direction. Id. ¶ 17. Lamadrid’s Mitsubishi impacted
the rear end of the Mazda and Nicholas DeMario was pronounced dead
at the scene. Id.
On October 31, 2016, Plaintiffs filed a lawsuit against
Lamadrid, the Puerto Rico Electric Power Authority (“PREPA”), the
Puerto Rico Highway and Transportation Authority (“PRHTA”), the
Municipality, and unnamed insurance companies, seeking emotional
damages as well as medical and funeral expenses caused by the loss
of their son. (Docket No. 1). Plaintiffs subsequently filed three
(3) amended complaints incorporating as co-defendants various
insurance companies. (Docket Nos. 2 ¶ 10; 61 ¶¶ 11-12; 99 ¶ 13).1
Essentially, Plaintiffs assert that the street light poles in
the area where accident occurred were not energized. (Docket No.
99 ¶ 26). Plaintiffs further allege that those street light poles
were under the jurisdiction, ownership, care, custody and control
of PREPA, the PRHTA, and the Municipality. Id. Accordingly, they
maintain that said co-defendants negligently failed to maintain
the street light poles functional and are thereby liable. Id. ¶¶
29-30.
On
January
28,
2019,
PREPA
filed
a
Motion
for
Summary
Judgment. (Docket No. 252). PREPA avers that the highway where the
accident occurred corresponded to a construction project titled
1
Accordingly, Plaintiffs’ Third Amended Complaint at Docket No. 99 is the
operative complaint.
Case 3:16-cv-02897-RAM Document 311 Filed 01/18/23 Page 3 of 23
Civil No. 16-2897 (RAM)
3
Project AC-200213 (“Project AC-200213” or “Project”). Id. at 3.
PREPA maintains it was neither the owner nor the contractor of the
Project, and its only duties regarding the same consisted of
approving the design of the lighting system and certifying that it
was built accordingly. Id. However, PREPA avers Project AC-200213
was
never
finished
nor
delivered
to
PREPA
for
energization,
therefore barring it from liability. Id.
Plaintiffs filed an Opposition to PREPA's Motion for Summary
Judgment. (Docket No. 265). Their main argument is that on June 6,
2006,
pursuant
Constitution
to
of
a
Access
document
titled
Easement
and
Notification
Cession
of
of
the
Transfer
and
Warranty (“Notification of Cession and Transfer”), the PRHTA ceded
and transferred the distribution or transmission of Project AC200213 to PREPA for the conservation and installation of all the
posts,
structures,
and
necessary
equipment
that
make
up
the
electrical system of the project. Id. at 5. Therefore, Plaintiff
alleges
PREPA
can
be
held
liable
in
the
case
at
bar.
Id.
Furthermore, Plaintiffs take issue with PREPA's claim that the
Project was never energized because the area where the accident
occurred had been temporarily illuminated by the PRHTA for the
Central American and Caribbean Games of 2010. Id. at 8-9.
Lastly, PREPA replied to Plaintiffs' opposition. (Docket No.
276). Therein, PREPA highlights that the June 6, 2006 Notification
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Civil No. 16-2897 (RAM)
4
of Cession and Transfer provides that it will become effective on
the date that PREPA “incorporates and connects the project's
distribution and transmission system” to PREPA’s electrical grid.
Id. at 2. PREPA maintains that the Project was not completed and
thus, it was never energized and the cession and transfer from the
PRHTA to PREPA never occurred.
Id. at 2-3. PREPA re-asserts it is
not liable because it neither designed the lighting system nor did
it energize it. Id. at 4-5.
II.
LEGAL STANDARD
A motion for summary judgment is governed by Fed. R. Civ. P.
56(a). Summary judgment is proper if the movant shows that (1)
there is no genuine dispute as to any material fact and (2) they
are entitled to judgment as a matter of law. See Fed. R. Civ. P.
56(a). “A dispute is ‘genuine’ if the evidence about the fact is
such that a reasonable jury could resolve the point in favor of
the non-moving party.” Thompson v. Coca–Cola Co., 522 F.3d 168,
175 (1st Cir. 2008). A fact is considered material if it “may
potentially ‘affect the outcome of the suit under governing law.’”
Albite v. Polytechnic Univ. of Puerto Rico, Inc., 5 F. Supp. 3d
191, 195 (D.P.R. 2014) (quoting Sands v. Ridefilm Corp., 212 F.3d
657, 660–661 (1st Cir. 2000)).
The moving party has “the initial burden of demonstrat[ing]
the absence of a genuine issue of material fact with definite and
Case 3:16-cv-02897-RAM Document 311 Filed 01/18/23 Page 5 of 23
Civil No. 16-2897 (RAM)
5
competent evidence.” Mercado-Reyes v. City of Angels, Inc., 320 F.
Supp. 344, at 347 (D.P.R. 2018) (quotation omitted). The burden
then shifts to the nonmovant, to present “competent evidence to
rebut the motion.” Bautista Cayman Asset Co. v. Terra II MC & P,
Inc., 2020 WL 118592, at 6* (quoting Méndez-Laboy v. Abbott Lab.,
424 F.3d 35, 37 (1st Cir. 2005)). A nonmoving party must show “that
a trialworthy issue persists.” Paul v. Murphy, 2020 WL 401129, at
*3 (1st Cir. 2020) (quotation omitted).
While a court will draw all reasonable inferences in favor of
the
non-movant,
it
will
disregard
conclusory
allegations,
unsupported speculation and improbable inferences. See Johnson v.
Duxbury,
Massachusetts,
931
F.3d
102,
105
(1st
Cir.
2019).
Moreover, the existence of “some alleged factual dispute between
the parties will not affect an otherwise properly supported motion
for summary judgment.” Scott v. Harris, 550 U.S. 372, 379 (2007)
(quotation omitted). Hence, a court should review the record in
its entirety and refrain from making credibility determinations or
weighing the evidence. See Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 135 (2000).
In this District, summary judgment is also governed by Local
Rule 56. See L. CV. R. 56(c). Per this Rule, an opposing party
must “admit, deny or qualify the facts supporting the motion for
summary judgment by reference to each numbered paragraph of the
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Civil No. 16-2897 (RAM)
6
moving party’s statement of material facts.” Id. Furthermore,
unless the fact is admitted, the opposing party must support each
denial or qualification with a record citation. Id.
Additionally, Local Rule 56(c) allows an opposing party to
submit additional facts “in a separate section.”
L. CV. R. 56(c).
Given that the plain language of Local Rule 56(c) specifically
requires that any additional facts be stated in a separate section,
parties are prohibited from incorporating numerous additional
facts within their opposition. See Natal Pérez v. Oriental Bank &
Trust, 291 F. Supp. 3d 215, 218-219 (D.P.R. 2018) (quoting Carreras
v. Sajo, Garcia & Partners, 596 F.3d 25, 32 (1st Cir. 2010) and
Malave–Torres v. Cusido, 919 F.Supp. 2d 198, 207 (D.P.R. 2013)).
If a party opposing summary judgment fails to comply with
the rigors that Local Rule 56(c) imposes, “a district court is
free, in the exercise of its sound discretion, to accept the moving
party's facts as stated.” Caban Hernandez v. Philip Morris USA,
Inc., 486 F.3d 1, 7 (1st Cir. 2007). Thus, litigants ignore this
rule at their peril. See Natal Pérez, 291 F. Supp. 3d at 219
(citations omitted).
III. FINDINGS OF FACT
To make findings of fact, the Court analyzed PREPA’s Statement
of Uncontested Material Facts in Support of Motion for Summary
Judgment (Docket No. 259-1) and Plaintiffs’ Opposing Statement of
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Civil No. 16-2897 (RAM)
7
Material Facts (Docket No. 264). After only crediting material
facts
that
are
properly
supported
by
a
record
citation2
and
uncontroverted, the Court makes the following findings of fact:3
A. Project AC-20013
1. Project AC-200213 (also referred to as the “Project”) began
in 2003 and entailed the construction of an interchange at
the intersection of Highways PR-2 and PR-309 and of an
overpass at the intersection of Highway PR-2 and PR-319.
(Docket No. 259-1 ¶¶ 12, 18).
2. The proposed works for the Project included constructing two
prestressed concrete bridges over highways PR-2 and PR-319 as
well as drainage, pavement markings, lighting, traffic signs,
relocation of PREPA and Puerto Rico Aqueducts and Sewer
Authority
("PRASA")
utilities,
among
other
miscellaneous
works. Id.
3. The improvements to the existing lighting system consisted of
the installation of: (a) forty 40-foot aluminum light poles
with double luminary through the central aisle of Highway PR2; and (b) 104 single-arm posts on the marginal streets and
intersections leading into the Municipality of Hormigueros
2
Any supporting documents not in the English language and lacking a certified
English translation were not considered. See L. CV. R. 5(c).
3 References to a specific Finding of Fact shall be cited in the following
manner: (Fact ¶ _).
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Civil No. 16-2897 (RAM)
8
(the “Municipality” or “Hormigueros”). (Docket Nos. 259-1 ¶¶
13-14; 281-1).
4. Project AC-200213 was owned by the PRHTA. (Docket Nos. 281-3
at 1; 184-2 at 2).
5. The Project, which totaled $18,949,884.00, was financed with
funds apportioned by the PRHTA. (Docket No. 259-1 ¶¶ 12, 19).
6. The general contractor for the Project was Construcciones
José Carro. Id. ¶ 16.
7. The Project’s designer was CMA Architects & Engineers LLC.
Id. ¶ 17.
8. The electrical sub-contractor for Project AC-200213 was Mega
Power. Id. ¶ 20.
9. Project AC-200213 includes the area of the accident, which
occurred in the vicinity of road PR-309. (Docket Nos. 256-5
at 76; 259-1 ¶ 62).
B. PREPA's relationship to Project AC-20013
10. The stages of PREPA's participation in a project such as
Project AC-200213 are the following:
a. A draft or pre-project application is submitted
b. PREPA performs a study on the proposed facilities
c. PREPA sends an evaluation letter with comments and/or
recommendations
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Civil No. 16-2897 (RAM)
d. The
9
designer
submits
the
project's
design
plans
following PREPA's guidelines
e. After evaluation, either PREPA endorsees the project's
design
plans
or
returns
it
with
comments
and/or
recommendations
f. The designer makes any needed corrections to the project
design plan and re-submits it
g. PREPA endorses the project design plans
h. The
owner,
or
its
representative,
submits
the
application for starting the project to the Office of
Inspections
i. PREPA then assigns an inspector for the project,
j. PREPA
schedules
a
meeting
at
the
beginning
of
the
project's construction phase
k. The owner pays the corresponding fees
l. The construction phase of the project begins
m. The
owner’s
private
inspector,
by
way
of
a
certification, submits the periodic reports and the
final report, together with the Inspection Certification
n. The contractor submits the project certification signed
by a licensed engineer or electrician
o. PREPA reviews the certification and payment of fees made
in the project
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Civil No. 16-2897 (RAM)
10
p. After PREPA receives and accepts the certification, the
owner
goes
to
the
corresponding
municipality
and
requests to pay via Form 18 of public lighting
q. After the Form 18 is received by PREPA, PREPA conducts
the final inspection and then energizes the project
(Docket No. 259-1 ¶ 76).
11. On June 5, 2006, the PRHTA issued a “Notification of the
Constitution of Access Easement and Cession of Transfer and
Warranty” with regards to the Project. With this document,
the PRHTA:
CEDES AND TRANSFERS the system of distribution
or transmission built within the property, as
described in the first paragraph of this
document, its equipment, materials, and
accessories to the Electric Power Authority of
Puerto Rico. Said cession and transfer will be
effective on the date that the Electric Power
Authority incorporates and connects the
project’s
distribution
and
transmission
system to the Electric Power Authority’s
electrical grid.
(Docket No. 184-2 ¶ 3) (emphasis added).
C. Setbacks for the energization of Project AC-20013
12. On January 9, 2009, Principal Supervising Engineer Edgardo
Arocho-Piris
administrator
informed
of
Project
Yaritza
AC-200213,
Cordero-Bonilla,
that
the
PRTHA
the
must
inform PREPA in writing whether the works will be completed.
(Docket Nos. 259-1 ¶ 36; 281-4).
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Civil No. 16-2897 (RAM)
11
13. On March 9, 2009, the Municipality notified the PRHTA that
the lights for Project AC-2000213 remained deactivated and
that it needed to know if they could assist with any issue in
order to light the area. (Docket Nos. 259-1 ¶ 37; 281-5).
14. On March 30, 2009, the Mayor of Hormigueros, Hon. Pedro J.
García ("Mayor García"), and personnel from the PRHTA had a
meeting to discuss why Project AC-200213 was not energized.
(Docket Nos. 259-1 ¶¶ 38-39; 281-6 at 1).
15. At
the
meeting,
the
PRHTA
informed
that
the
electrical
subcontractor completed the work but the cables from the
lights were stolen and a subsequent quote to replace the
stolen lights was very costly. Furthermore, pathway clearance
needed to be performed before the Project could be energized.
(Docket Nos. 259-1 ¶¶ 40-42; 281-6 ¶ 3).
16. When
vandalism
such
as
this
occurs,
the
contractor
is
responsible for filing an insurance claim to cover the theft.
(Docket No. 259-1 ¶ 30).
17. Mayor García pledged to speak with PREPA’s district manager
to identify how the work can be expedited and mentioned that
the Municipality had retained the services of a former PREPA
engineer and two electricians who could perform the work.
(Docket Nos. 259-1 ¶ 43; 281-6 ¶ 5).
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Civil No. 16-2897 (RAM)
18. The
PRHTA
performed
mentioned
was
12
that
complex
the
and
work
that
included
remained
installing
to
be
some
substations. (Docket No. 259-1 ¶ 44).
19. Lastly, the PRHTA recommended that a report be prepared
identifying all pending electrical work, to then assess the
Municipality's ability to perform it.
Id. ¶ 45.
20. On May 4, 2009, Mayor García requested to meet with Mr. Raúl
Ruiz (“Mr. Ruiz”), PREPA’s Regional Administrator for the
region of Mayagüez, to discuss the Project. (Docket Nos. 2591 ¶ 46; 281-7).
21. On May 12, 2009, Mayor García met with Mr. Ruiz and with Luis
Hernández ("Mr. Hernández"), Director for the District of San
Germán. At this meeting, Mayor García was informed that PREPA
would authorize, by way of exception, the work pertaining to
the electrical lines going through the central barrier of
Highway PR-2, so that the luminaries could be energized when
the remaining work for the Project was complete. (Docket Nos.
259-1 ¶¶ 47-48; 281-8).
22. On May 13, 2009, PREPA formally informed the PRHTA via letter
that, although Project AC-2000213 did not comply with PREPA’s
rules and standards, given the economic crisis and that the
Project was already built, PREPA would grant PRHTA’s request
to embed wire tubing for the public lighting system in the
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Civil No. 16-2897 (RAM)
13
central concrete barrier of Highway PR-2. (Docket Nos. 259-1
¶ 49; 281-9).
23. However, PREPA noted that this approval did not establish
precedent, and that for PREPA to accept the total project,
the PRHTA must comply with all aspects of PREPA's inspection.
(Docket Nos. 259-1 ¶ 50; 281-9).
24. On June 8, 2009, a special meeting was held between the PRHTA,
the
Municipality
and
PREPA
regarding
Project
AC-200213.
(Docket No. 259-1 ¶ 51).
25. At the meeting, PREPA was informed that the Project's lighting
system had not been completed because the installed cables
were stolen in October, the contractor demanded a change in
price for the reinstallation of the stolen cables, and the
PRHTA rejected the contractor’s demand after evaluating the
same. Id. ¶ 52.
26. However, a new quote was requested from the contractor and
would be sent to the PRHTA’s Central Office for approval. The
Municipality
also
requested
that
any
future
quote
be
forwarded to the Municipality so that they could collaborate
in the approval process. Id. ¶¶ 53, 56.
27. On their part, at the same meeting, PREPA informed that: (a)
its inspection office approved the construction of electrical
lines through the central barrier of PR-2; and (b) if the
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Civil No. 16-2897 (RAM)
contractor
and
the
14
PRHTA
reached
an
agreement
for
the
reinstallation of the stolen cables, PREPA would be willing
to expedite its inspections and connect the system to the
power supply. Id. ¶¶ 54-55.
28. On
June
30,
2009,
the
contractor
submitted
a
quotation
totaling $255,000.00 for the reinstallation of the cables at
Project AC-200213 (the "Quotation"). Id. ¶ 57.
29. The Quotation was submitted to the PRHTA for evaluation on
July 6, 2009. Id. ¶ 58.
D. Subsequent communications from 2010 through 2014 regarding the
status of Project AC-20013
30. On May 13, 2010, Mayor García, on behalf of the Municipality,
wrote to the PRHTA to inquire regarding the status of the
still-unlit streetlamps and work pending for Project AC200213. Id. ¶ 59.
31. For the 2010 Central American Games, the PRHTA ran cables
from pole to pole to provide lighting on a temporary basis in
the area of the Project. (Docket No. 256-5 at 16, 54-58).
32. On September 1, 2011, PREPA instructed the Municipality, via
letter addressed to Mayor Garcia, that (1) the Municipality
had to obtain authorization from the PRHTA to complete the
work to the lighting system; (2) the PRHTA had to assign and
transfer the lighting system to PREPA in order to have it
energized; and (3) once the authorization was received, the
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Civil No. 16-2897 (RAM)
15
Municipality had to pay for PREPA to repair and equip the
lighting system. (Docket Nos. 259-1 ¶ 63; 281-15).
33. In a letter dated April 22, 2014, Eng. Pedro Janer from CMA
Architects
&
Engineers,
the
designers
of
the
Project’s
lighting system, notified Alberto Lastra Power, executive
director of the Permit Management Office (“OGPE” by its
Spanish acronym) that:
The Puerto Rico Highway and Transportation
Authority (PRHTA) proposes the refurbishment
of the existing lighting system along Highway
PR-2 in the section spanning from kilometer
161.8 to kilometer 163.5, located in the
municipality of Hormigueros (project ACT200213 [sic]). The lighting in this area was
not fully constructed, the substations were
not installed, and the system was not
connected to the power supply, which causes
this section of the highway to be left without
proper lighting. Throughout this project, the
PRHTA proposes completing the construction of
the lighting and the required substations and
connecting the system to the power supply.
The project will be carried out on a public
roadway and belongs to the PRHTA.
(Docket Nos. 259-1 ¶¶ 25, 64-67 and 281-3) (emphasis added).
34. CMA
Architects
&
Engineers
submitted
a
request
for
recommendation from PREPA, asking that PREPA “indicate the
connection point and the voltage to be utilized” for the
Project. (Docket Nos. 259-1 ¶ 68; 281-16).
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Civil No. 16-2897 (RAM)
16
35. On May 13, 2014, PREPA provided the Infrastructure Manager of
OGPE with a project assessment (the “Assessment”). Therein,
PREPA identified the corresponding points of connection and
voltage for the Project. (Docket Nos. 259-1 ¶ 69; 281-17).
36. The Assessment specified that it did not constitute a review
of the design plan, and that the designer maintained the
responsibility to submit the plans for approval in compliance
with applicable regulations. Furthermore, “[f]inal plans of
the
unit
and/or
letter
form
the
project
owner,
charge
calculations and Lambert coordinates corresponding to the
location of the project will be required prior to the filling
of the plans.” (Docket Nos. 259-1 ¶¶ 71-72; 281-17 ¶¶ 11-12).
37. Moreover, per the Assessment, “[t]o know the cost of the work
to be performed by PREPA … the customer must request the
corresponding
estimate
from
the
Studies
and
Estimates
Section, Mayagüez Region.” (Docket Nos. 259-1 ¶ 70; 281-17 ¶
8).
38. On May 21, 2014, Mayor García wrote PREPA a letter stating
the following:
On November 28, 2011, the Municipality of
Hormigueros, by way of WR-3420998, entered into an
agreement with the Electric Power Authority for
secondary wiring for 12 floodlights for the amount
of $6,701.00 as part of a project that was
originally developed by the Highway Authority, AC200213.
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Civil No. 16-2897 (RAM)
17
At present, six of these 12 floodlights have been
unlit for over five months. On February 13, 2014,
the engineer Luis Valentín notified this situation
on behalf of the municipality in item two of said
letter. In a meeting held on March 13, 2014 in the
mayor’s office in Hormigueros, we were informed
that said line, identified as sulfated, would be
replaced in order to correct the problem. As of
yet, said work has not been performed. We refer to
the lights located between the marginal road in
front of the car dealership and the intersection of
PR-319 and PR-2.
I would appreciate your collaboration to solve this
safety issue.
(Docket No. 281-14).
39. These light poles were located at the intersection between
PR-319 and PR-2. (Docket No. 259-1 ¶ 61).
40. After the May 13, 2014 Assessment letter from PREPA was
received by the PRHTA, the Project was halted. Id. ¶ 75.
E. Project AC-20013 was not energized
41. PREPA did not approve the lighting phase of Project AC-200213
because said phase was never completed by the PRHTA or its
contractor. Id. ¶ 77.
42. As of April 16, 2018, i.e. the date of Ms. Ivelisse PérezMárquez’s
Project
(the
PRHTA’S
AC-200213
had
project
not
been
supervisor)
wired
and
deposition,
the
relevant
substations had not been installed. Id. ¶¶ 78-79).
43. PREPA could not energize the Project if there were still
substations to be installed. Id. ¶ 80.
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Civil No. 16-2897 (RAM)
18
IV.
ANALYSIS
The substantive law of Puerto Rico controls in this diversity
case. See Rivera-Marrero v. Presbyterian Cmty. Hosp., Inc., 2016
WL 7670044, at *1 (D.P.R. 2016) (quoting Summers v. Fin. Freedom
Acquisition LLC, 807 F.3d 351, 354 (1st Cir. 2015)) (“Since this
is a diversity case, we look to federal law for guidance on
procedural matters (such as the summary judgment framework) and to
state law (here, [Puerto Rico] law) for the substantive rules of
decision.”).
Plaintiffs
are
seeking
emotional
damages
as
well
as
compensation for medical and funeral expenses following the death
of
their
son,
allegedly
caused
in
part
by
co-defendants’
negligence. (Docket No. 99 ¶¶ 41, 43). Article 1802 of the Civil
Code is Puerto Rico’s general tort statute. It states that a person
who “causes damages to another through fault or negligence” shall
be liable in damages. P.R. Laws Ann. tit. 31, § 5141. “The three
essential elements for general tort claims are: (1) evidence of
physical or emotional injury, (2) a negligent or intentional act
or omission (the breach of duty element), and (3) a sufficient
causal nexus between the injury and defendant's act or omission
(in other words, proximate cause).” Vazquez-Filippetti v. Banco
Popular de Puerto Rico, 504 F.3d 43, 49 (1st Cir. 2007) (emphasis
Case 3:16-cv-02897-RAM Document 311 Filed 01/18/23 Page 19 of 23
Civil No. 16-2897 (RAM)
19
added) (citing Torres v. KMart Corp., 233 F.Supp.2d 273, 277–78
(D.P.R. 2002)).
The first element is met, as it is uncontested that Plaintiffs
have suffered emotional injury following the death of their son.
As to the second element, given that Plaintiffs allege PREPA failed
to install, maintain, and energize the light poles related to
Project AC-200213, the question is whether an omission or breach
of duty occurred. Omissions generate liability under Article 1802
“when the law imposes a duty of care requiring the defendant to
conform to a certain standard of conduct for the protection of
others
against
unreasonable
risk.”
Zabala-Calderon
v.
United
States, 616 F. Supp. 2d 195, 199 (D.P.R. 2008) (quotation omitted).
This duty of care “may arise in one of three ways: ‘(1) by a
statute, regulation, ordinance, bylaw, or contract; (2) as the
result of a special relationship between the parties that has
arisen through custom; or (3) as the result of a traditionally
recognized duty of care particular to the situation.’” Carr v.
Puerto Rico Ports Auth., 2011 WL 1484158, at *3 (D.P.R. 2011)
(citing De–Jesus–Adorno v. Browning Ferris Industries of Puerto
Rico, Inc., 160 F.3d 839, 842 (1st Cir. 1998)). See also VazquezQuintana v. Falk, 2018 WL 8838860, at *4 (D.P.R. 2018).
Foreseeability is a central “component of the ‘breach’ subelement because a defendant only breaches his duty if he acted (or
Case 3:16-cv-02897-RAM Document 311 Filed 01/18/23 Page 20 of 23
Civil No. 16-2897 (RAM)
20
failed to act) in a way that a reasonably prudent person would
foresee as creating undue risk.” Vazquez-Filippetti, 504 F.3d at
49 (citing Pacheco Pietri v. ELA, 1993 P.R.-Eng. 839, 817 (1993))
(emphasis added). “However, the foreseeability required under art.
1802 does not extend to all imaginable effects resulting from
defendant's conduct. This would be tantamount to turning the
defendant into an absolute insurer of its acts and omissions.”
Wojciechowicz v. United States, 576 F. Supp. 2d 241, 272 (D.P.R.
2008), aff'd, 582 F.3d 57 (1st Cir. 2009) (citations omitted).
It is uncontested PREPA was neither the owner, designer, nor
electrical contractor of Project AC-200213. (Facts ¶¶ 4, 6, 7, 8).
Nevertheless, Plaintiffs assert that PREPA had a duty to maintain
and energize the Project’s lighting pursuant to the June 5, 2006
“Notification of the Constitution of Access Easement and Cession
of Transfer and Warranty” issued by the PRHTA. (Fact ¶ 11).
Therein, the PRHTA ceded and transferred the Project’s “system of
distribution
or
transmission
built
within
the
property,
as
described in the first paragraph of this document, its equipment,
materials, and accessories to [PREPA].”4 However, this cession to
PREPA
4
was not instantaneous.
The plain text of the document
In their Opposition to PREPA’s Motion for Summary Judgment, Plaintiffs argue
that this constitutes a unilateral declaration of intention by PREPA. This
argument fails on its face given that the “Notification of Constitution of
Access Easement and Cession of Transfer and Warranty” was issued by the PRHTA,
and not by PREPA. (Fact ¶ 11).
Case 3:16-cv-02897-RAM Document 311 Filed 01/18/23 Page 21 of 23
Civil No. 16-2897 (RAM)
21
provides, “[s]aid cession and transfer will be effective on the
date
that
[PREPA]
distribution
and
incorporates
transmission
and
system
connects
to
the
[PREPA]’s
project’s
electrical
grid.” Id. (emphasis added). Therefore, PREPA’s duty as to the
Project was contingent on its incorporation and connection to the
electrical grid.
Although Plaintiffs point to the temporary lighting for the
Central American Games in 2010 and an agreement in 2014 for PREPA
to assist with the secondary wiring of 12 floodlights, the record
reflects that the Project was not energized or connected to the
electrical grid. (Facts ¶¶ 31, 38). Importantly, Project AC-200213
was not energized, and its wiring system was not completed, due to
events outside of PREPA’s control, namely the theft of electrical
cables after work had been completed by the subcontractor. (Fact
¶ 15). In fact, PREPA made exceptions to facilitate the PRHTA’s
completion
of
the
Project
and
expedite
its
subsequent
energization. (Facts ¶¶ 21-23; 27).
Given that energization of the Project by connecting to
PREPA’s grid did not occur, neither did the cession and transfer.
Consequently, PREPA did not have a duty of care with regards to
the unfinished Project. In the operative Complaint, Plaintiffs
mention that various co-defendants failed to comply with the
“Illumination
Handbook
of
the
Puerto
Rico
Electric
Power
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Civil No. 16-2897 (RAM)
22
Authority, the Federal Highway Administration Rules, the National
Highway
System
Designation
Act
of
1995,
the
AASHTO
Highway
Subcommittee on Design, Federal Highway Act of 1956 and the Federal
Highway Administration Lighting Handbook, among others.” (Docket
No. 99 ¶ 30). However, they fail to identify any specific statute
or regulation that imposes upon PREPA the duty to energize an
uncompleted highway project of which it is not the owner, designer,
or electrical subcontractor.
The Court notes that PREPA “has the duty to exercise the
highest degree of care, due to the inherently dangerous nature of
the product that it markets” and that this “elevated duty of care
covers the installation, maintenance and operation of its power
generating plants.” Martinez De Jesus v. Puerto Rico Elec. Power
Auth., 256 F. Supp. 2d 122, 125 (D.P.R. 2003) But “PREPA is not an
absolute insurer of every accident or imaginable risk.” Torres
Solis et al. v. A.E.E. et als., 136 P.R. Dec. 302 (1994) (emphasis
added). Moreover, its elevated duty is related to inspecting and
maintaining
electrical
distribution
and/or
generation
systems
under its control, not those which have yet to be built or properly
ceded to it. See Torres Solís, 136 P.R. Dec. 302; Méndez Purcell
v. A.F.F., 110 D.P.R. 130, 134 (1980); Burgos Quiñones v. A.F.F.,
90 D.P.R. 613, 619 (1964); Ramos v. A.F.F., 86 D.P.R. 603, 609
(1962)).
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Civil No. 16-2897 (RAM)
23
V.
CONCLUSION
PREPA was not the owner, designer or electrical subcontractor
of the Project. Further, at least as of April 2018, Project AC200213’s
owner,
PRHTA,
had
not
completed
the
necessary
construction of the Project, which resulted in PREPA not being
able to energize it. Therefore, the June 5, 2006 “Notification of
the Constitution of Access Easement and Cession of Transfer and
Warranty” never entered into effect and the cession and transfer
of the Project from the PRHTA to PREPA never occurred.
In light of the above, the Court must conclude that PREPA did
not have a legally recognized duty to install, energize, or
otherwise maintain light poles for Project AC-200213. Therefore,
PREPA’s Motion for Summary Judgment at Docket No. 252 is GRANTED.
Plaintiffs’ claims against PREPA are DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
In San Juan Puerto Rico, this 18th day of January 2023.
S/ RAÚL M. ARIAS-MARXUACH
United States District Judge
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