Outter v. Marriott PR Management Corporation

Filing 16

OPINION AND ORDER. The Court GRANTS Defendants' Motion for Summary Judgment at Docket No. 13 . Judgment of Dismissal with Prejudice shall be entered accordingly. Signed by Judge Raul M. Arias-Marxuach on 3/18/2020. (mrr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
PEDRO OUTTER,
Plaintiff,
v.
MARRIOTT
P.R.
MANAGEMENT
CORPORATION
D/B/A
SAN
JUAN
CIVIL NO. 18-1070 (RAM)
MARRIOTT
RESORT
&
STELLARIS
CASINO, JOHN DOE I-X; AND AIG
INSURANCE COMPANIES; AS WELL AS
ANY OTHER JOINT TORTFEASORS,
Defendants.

OPINION AND ORDER
RAÚL M. ARIAS-MARXUACH, District Judge
Pending

before

the

Court

is

Defendants

Marriott

P.R.

Management Corporation d/b/a San Juan Marriott Resort & Stellaris
Casino, John Doe I-X; and AIG Insurance Companies; as well as any
other joint tortfeasors’ Motion for Summary Judgment (“Motion for
Summary Judgment” or “MSJ”) (Docket No. 13). Plaintiff Pedro Outten
(“Plaintiff” or “Mr. Outten”) 1 subsequently filed an Affirmation
in Opposition to Summary Judgment Motion (“Opposition”). (Docket
No. 14). After considering the parties’ submissions, the Court
GRANTS Defendants’ Motion for Summary Judgment for the reasons set
below.

1 There is a discrepancy regarding the spelling of Mr. Outten’s name. While
initially it appeared as Mr. Outter (Docket No. 1), starting at Docket No. 11,
Plaintiff’s name appears as Mr. Outten. Since the spelling appears as “Outten”
in Defendants’ MSJ and SMUF as well as in Plaintiff’s Deposition and in his
Opposition, for clarity’s sake the Court shall adopt the same herein.

Civil No. 18-1070 (RAM)
I.

2
PROCEDURAL BACKGROUND

On February 2, 2018, Plaintiff sued Defendants Marriott P.R.
Management Corporation d/b/a San Juan Marriott Resort & Stellaris
Casino (“Marriott”), John Doe I-X; and AIG Insurance Companies; as
well as any other joint tortfeasors (collectively, “Defendants”)
for damages pursuant to Article 1802 of the Puerto Rico Civil Code,
P.R. Laws Ann. tit. 31, § 5141. (Docket No. 1 at 1). Plaintiff
claims he was struck on the head and neck by the “barrier gate”
located in front the garage owned and operated by Marriott. Id. at
3. This allegedly caused him to suffer serious injuries. Id.
On January 31, 2019, Defendants filed an MSJ (Docket No. 13)
alongside

a

Statement

of

Uncontested

Material

Facts

(“SUMF”)

(Docket No. 13-1). Plaintiff then filed his Opposition to the same.
(Docket No. 14). The Court will herein address the pending MSJ.
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 [...] no
genuine

dispute

as

to

any

material

fact”

and

that

they

are

“entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A dispute is genuine if the evidence “is such that a reasonable
jury could resolve the point in the [non-movant’s] favor.” MercadoReyes v. City of Angels, Inc., 320 F. Supp. 3d 344, 347 (D.P.R.
2018) (quotation omitted). A fact is material if “it is relevant
to the resolution of a controlling legal issue raised by the motion

Civil No. 18-1070 (RAM)

3

for summary judgment.” Bautista Cayman Asset Co. v. Terra II MC &
P, Inc., 2020 WL 118592, at *6 (D.P.R. 2020) (quotation omitted).
The moving party has “the initial burden of demonstrat[ing]
the absence of a genuine issue of material fact with definite and
competent

evidence.”

Mercado-Reyes,

320

F.

Supp.

344

at

347

(quotation omitted). The burden then shifts to the nonmovant, to
present “competent evidence to rebut the motion.” Bautista Cayman
Asset Co., 2020 WL 118592, at 6* (quoting Méndez-Laboy v. Abbott
Lab., 424 F.3d 35, 37 (1st Cir. 2005)). A nonmoving party must
show

“through

submissions

of

evidentiary

quality,

that

a

trialworthy issue persists.” Robinson v. Town of Marshfield, 950
F.3d 21, 24 (1st Cir. 2020) (quotation omitted). Most notably,
while a court will draw all inferences in favor of the non-movant,
summary judgment may be appropriate if the nonmoving party’s case
“rests merely upon ‘conclusory allegations, improbable inferences,
and unsupported speculation.’” Burke Rozzetti v. Ford Motor Co.,
2020 WL 704860, at *3 (D.P.R. 2020) (quotation omitted).
Finally, Local Rule 56 also governs summary judgment. See L.
CV. R. 56. Per this Rule, a nonmoving party 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 material facts.” Id. Local rules such as Rule 56,
“are designed to function as a means of ‘focusing a district
court's

attention

on

what

is

and

what

is

not-genuinely

Civil No. 18-1070 (RAM)
controverted.’”

4

Marcano-Martinez

v.

Cooperativa

de

Seguros

Multiples de Puerto Rico, 2020 WL 603926, at *2 (D.P.R. 2020)
(quoting Calvi v. Knox County, 470 F.3d 422, 427 (1st Cir. 2006)).
The

First

Circuit

has

further

highlighted

that

“[p]roperly

supported facts [...] shall be deemed admitted unless controverted
in the manner prescribed by the local rule.” Advanced Flexible
Circuits, Inc. v. GE Sensing & Inspection Techs. GmbH, 781 F.3d
510, 520 (1st Cir. 2015) (quotation omitted).
III. FINDINGS OF FACT
Before stating the uncontroverted material facts, the Court
addresses a compliance issue which arose when reviewing the SUMF
and supporting documents. (Docket No. 13-1).
First, Mr. Outten contends in his Opposition that Defendants
failed to file a complete copy of Plaintiff’s January 18, 2019
Deposition (“Deposition”) as required by Local Rule 56. See D.P.R.
Civ. R. 56; Docket No. 14 at 10-11. However, a lack of a complete
transcript does not mean that its excerpts should automatically be
stricken from the record. Instead, the appropriate remedy is for
Plaintiff to file either a complete copy of the transcript or of
the missing pages. See e.g., Leighton v. Three Rivers Sch. Dist.,
2015 WL 272894, at *2 (D. Or. 2015), aff'd, 693 F. App'x 662 (9th
Cir. 2017) (finding that although Defendant failed to include a
reporter’s certification or cover page, the fact that “Plaintiff
independently offered a properly authenticated copy of Plaintiffs

Civil No. 18-1070 (RAM)

5

deposition […] [is] sufficient evidence that the document is what
the parties purport it to be.”) See also, Russo v. City of
Hartford,

2004 U.S. Dist. LEXIS 21092, *7 (D.Conn. 2004) (denying

motion to strike in the absence of arguments that transcripts were
inaccurate or altered and that if they were not what they purported
to be, opposing counsel “should have brought that to the court's
attention

by

specifics

and

with

a

copy

of

the

certified

transcript.”).
Second,

Plaintiff

also

avers

that

Defendants

failed

to

provide an authenticated copy of the Deposition since they did not
include

a

reporter’s

certificate

alongside

the

deposition

transcript per Fed. R. Civ. P. 30(f). (Docket No. 14 at 10-11).
The Court disagrees. Multiple District Courts have held that if
deposition excerpts include a cover page identifying the deponent,
the action, the time and place of the deposition, the excerpts
were properly authenticated under Fed. R. Evid. 901(b)(4). See
e.g., Glob. Med. Sols., Ltd v. Simon, 2013 WL 12065418, at *9 (C.D.
Cal. 2013) (stating that deposition was authenticated because
“[a]lthough not accompanied by a reporter's certification, the
excerpts […] have a cover page that references this action and the
deponent's name.”); Renteria v. Oyarzun, 2007 WL 1229418, at *2
(D. Or. 2007) (absent a showing that the excerpts were fraudulent,
deposition transcripts that lacked a copy of the court reporter's
certification but included a cover page identifying the deponent,

Civil No. 18-1070 (RAM)
the

action

and

the

time

6
and

place

of

the

deposition

were

authenticated under Fed. R. Evid. 901(b)(4)); Stanley Martin Cos.
v. Universal Forest Prods. Shoffner LLC, 396 F.Supp.2d 606, 613
(D. Md. 2005) (holding compliance of excerpt deposition with Fed.
R. Evid. 901 when testimony was taken during present litigation,
opposing party was represented by counsel, and opposing party was
surely in possession of copies); Commercial Data Servers, Inc. v.
Int'l Bus. Machines Corp., 262 F. Supp. 2d 50, 59 (S.D.N.Y. 2003)
(“the appearance of the [deposition transcripts], each of which
includes a cover page and the title page, and the circumstances
through which they are presented to the Court […], authenticates
them.”)
Here, Plaintiff attempts to strike the Deposition because it
lacks a reporter’s certification and it was not filed in full.
(Docket No. 14 at 10-11). However, in his Opposition, Plaintiff
cites the very same Exhibit he now seeks to strike to show that
Mr. Outten testified that the mechanical gate which allegedly
caused his physical injuries had a defect. (Docket No. 14 at 2).
Plaintiff also quotes the Deposition to aver that he was not
“trying” to get hit by the mechanical gate. Id.
Plaintiff cannot have it both ways. In citing the Deposition,
Plaintiff

is

essentially

adopting

the

statements

within

the

excerpts that were originally submitted by Defendants. See Fenje
v. Feld, 301 F. Supp. 2d 781, 789 (N.D. Ill. 2003), aff'd, 398

Civil No. 18-1070 (RAM)

7

F.3d 620 (7th Cir. 2005) (“although a deposition transcript should
be

certified

by

the

court

reporter,

objecting

that

the

certification is missing is inappropriate and merely obstructive
when the objecting party has no basis for believing the transcript
is inauthentic or inaccurate.”) The Deposition excerpts filed by
Defendants include a cover page with the names of the parties, the
civil case number and the date and location of the Deposition.
(Docket No.13-2 at 1). Further, Plaintiff does not contend, and
has not proffered any evidence on the record suggesting, that his
Deposition is an inauthentic or inaccurate record of his testimony.
Defendants may thus rely on the Deposition excerpts in their MSJ
and SUMF. See Chaney v. City of Orlando, Fla., 2005 WL 8159900, at
*7 (M.D. Fla. 2005) (holding that a moving party may rely on
depositions if the names of the parties, date, and civil case
number appear on the cover of each deposition and the opposing
party presents no evidence that said depositions are not accurate
records of the deponents’ testimony).
Most of Defendants’ thirteen (13) facts in their SUMF were
supported by a record citation to either the Complaint (Docket No.
1),

the

Answer

to

Complaint

(Docket

No.

7)

or

Mr.

Outten’s

Deposition (Docket No. 13-2). However, Fact Nos. 2 and 10 were
supported by pages of the Deposition transcript not proffered to
the Court and are stricken from the record. See D.P.R. Civ. R. 56;

Civil No. 18-1070 (RAM)

8

De la Mata v. Puerto Rico Highway & Transp. Auth., 920 F. Supp. 2d
219, 226 (D.P.R. 2012).
The Court further notes that Plaintiff failed to properly
contradict Defendants’ material facts in his Opposition. As such,
the following eleven (11) facts are deemed unopposed:
1. Pedro Outten alleged that he was a resident of New
York at the date of the filing of the Complaint. (Docket
No. 13-1 ¶ 1).
2. Marriott P.R. Management Corporation is a corporation
organized under the laws of Puerto Rico which operates
and manages a hotel under the name San Juan Marriott &
Stellaris Casino. (Id. ¶ 3).
3. Mr. Outten stayed in the Hotel as a guest of Tonya
Capers in Room 531 of the Hotel, where they stayed from
August 14, 2017 to August 20, 2017. (Id. ¶ 4).
4. The Hotel had a parking garage in its premises, which
has “barrier gates” in its entrance and in its exit.
(Id. ¶ 5).
5. Prior to the accident on August 19, 2017, Mr. Outten had
walked on the crosswalk next to the exit barrier gate
many times before the accident. (Id. ¶ 6).
6. Mr. Outten was aware prior to his accident on August
19, 2017 about the existence of such barrier gates at
the entrance and exit of the parking garage. (Id. ¶
7).
7. Mr. Outten also knew that there was a pedestrian
crosswalk marked on the floor for pedestrians to walk.
(Id. ¶ 8).
8. Plaintiff conceded that nothing prevented
looking at the barrier gate. (Id. ¶ 9).

him

from

9. Mr. Outten essentially conceded that the cause of the
accident was that he had received a call to his cell
phone and got distracted. He testified the following:

Civil No. 18-1070 (RAM)

9

Q So you weren’t looking when the barrier
came down, because if you had been looking
you would’ve avoided it, right?
A Yeah, of course, yeah.
Q And why weren’t you looking?
A Because I received a call or
that got my attention, yeah.

something

Q Oka. So you were distracted by the phone
call?
A Yeah.

It had to be. (Id. ¶ 11).

10. The following deposition testimony of Mr. Outten
establishes that the accident occurred when he was
distracted with his cell phone call:
Q And so why you didn’t get hit all
times that you passed there before?

the

A Because I didn’t receive a phone call at
that moment, maybe that could be what it
is. It’s an accident. (Id. ¶ 12).
11. Mr. Outten does not know of any defect in the
barrier gate and does not even recall ever saying
that the barrier gate was defective. The following
testimony illustrates said averment:
Q

You claimed in the complaint that the
barrier was defective. What was the defect?

A

I don’t recall…I don’t recall that, I just
recall me getting hit by a gate.

….
…
Q Okay. So you are not saying that the barrier
was defective?
A

No, I don’t recall saying that. (Id. ¶ 13).

Civil No. 18-1070 (RAM)

10
IV.

ANALYSIS

A. Premises Liability under Article 1802
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.”).
Plaintiff brings the present suit under Articles 1802 of the Puerto
Rico Civil Code, P.R. Laws Ann. tit § 31, § §5141 (“Article 1802”).
(Docket No. 1 at 1). Article 1802 imposes tort liability on “[a]
person who by an act or omission causes damage to another through
fault or negligence.” P.R. Laws. Ann. tit 31, §5141. Moreover,
“[w]hen a dangerous condition is present on commercial premises
and injury results to a business invitee, tort liability often
turns on whether the owner or occupier knew or reasonably should
have known of the existence of the hazard.” Calderon-Ortega v.
United States, 753 F.3d 250, 251 (1st Cir. 2014). The First Circuit
has explained that “liability will only arise if the damages
complained of were reasonably foreseeable.” Blomquist v. Horned
Dorset

Primavera,

Inc.,

(quotation omitted).

925

F.3d

541,

547

(1st

Cir.

2019)

Civil No. 18-1070 (RAM)

11

Business owners have “a duty to keep said establishment in a
safe condition so that the clients do not suffer harm or damage.”
Smith v. Condado Duo La Concha SPV, LLC, 2017 WL 9121575, at *3
(D.P.R. 2017), report and recommendation adopted, 2017 WL 6453306
(D.P.R. 2017) (quotation omitted). However, this does not mean
that they are automatically liable for every damage that occurs.
Instead,

a

business

owner

is

only

deemed

liable

for

“risky

conditions inside the business premises that the owner knew or
should have known existed.” Id. Therefore, a plaintiff must show
“that the defendant had actual or constructive knowledge of the
dangerous condition that most likely than not caused the damage.”
Id. (quotation omitted). To establish this constructive knowledge,
“plaintiff

must

prove

either

the

existence

of

the

dangerous

condition for an unreasonable or excessive length of time or, […]
the owner's insufficient prevention policy or failure to implement
the policy.” Leonhardt v. Aerostar Airport Holdings LLC, 294 F.
Supp. 3d 13, 18 (D.P.R. 2018) (quotation omitted).
Hotels are no exception to this rule. The First Circuit has
held that “[a]lthough they are not absolute insurers of their
guests' well-being, hotels have a heightened duty of care towards
their guests.” Blomquist, 925 F.3d at 547. Thus, a hotel will be
found to have breached its duty of care to its guests if “(1) the
hotel knew or should have known of the [dangerous preexisting]
condition, and (2) the hotel did not take the precautions of a

Civil No. 18-1070 (RAM)

12

prudent and reasonable person to avoid or remedy the foreseeable
risks the condition created.” Id. Lastly, the District of Puerto
Rico has also explained that “there is no obligation to protect
the visitor [of a business establishment such as a hotel] against
dangers which are known to [the visitor], or which are so apparent
that he may reasonably be expected to discover them and be able to
protect himself.” Robles v. Pablo Fajardo, 2016 WL 2637814, at *2
(D.P.R.

2016)

(citing

Figueroa–Garcia

v.

United

States,

364

F.Supp.2d 140, 143 (D.P.R. 2005)). When evaluated against these
standards, the Court is of the view that summary judgment as to
Plaintiff’s Article 1802 claim is proper.
First,

a

look

at

the

uncontroverted

facts

reveals

that

Plaintiff failed to proffer any evidence of a dangerous condition
or of a design defect. When asked during his Deposition if he
believed that the mechanical gate of the parking garage had a
defect, he concedes that he did not think it did, nor did he recall
saying in the first place that the mechanical gate had a defect.
(Docket No. 13-2 at 84, l. 13-24 and 85, l. 1-3). The pertinent
part of the Deposition reads as follows:
Q You claimed in the complaint [and in the
answer to the interrogatories] that the
barrier was defective. What was the defect?
A I don’t recall … I don’t recall that, I just
recall getting hit by a gate.
Q Okay. So you don’t know…

Civil No. 18-1070 (RAM)

13

A I don’t know, I don’t know what happened, I
don’t … it just happened. It’s not like I
was trying to make something happen, it just
happened.
Q Okay. So you are not saying that the barrier
was working defective?
A No, I don’t recall saying that.

Id. On the contrary, Plaintiff averred in his Opposition that
he testified that the barrier had a defect when he stated that
“the traffic control arm came down right on [him while he was in]
the pedestrian the barrier was defective cross walk ….” (Docket
No. 14 at 2, 6) (citing Docket No. 13-2 at 97, l. 12-14). However,
Plaintiff’s Deposition testimony shows that he does not recall
seeing a defect on the mechanical gate. Cf. Hoose v. United States,
2019 WL 5986698, at 3 (M. G. Ga. 2019) (holding that a plaintiff
who knew of an issue concerning a swinging gate, informed his
supervisor that it was a safety hazard, and still chose to go
through the gate which resulted in his injuries, could not hold
the Government liable for his injuries because he assumed the risk
of getting hit by the gate).
Hence, since Plaintiff testified that he failed to see a
defect in the mechanical gate, and further failed to proffer any
evidence demonstrating a potential defect, any arguments alleging
negligent design or negligent maintenance of the mechanical gate
are unavailing. The Opinion in Cedeño Nieves v. Aerostar Airport

Civil No. 18-1070 (RAM)

14

Holdings LLC is helpful in this regard. See Cedeño Nieves v.
Aerostar Airport Holdings LLC, 251 F. Supp. 3d 360, 368-369 (D.P.R.
2017). In Cedeño, the District Court of Puerto Rico held that a
Plaintiff could not allege negligent maintenance of an escalator
by simply stating, without more, that the area of the escalator
was “dark, confusing, and lacking proper warning signs.” Id. Nor
could the Plaintiff posit a breach by negligent design when she
failed to identify the design of either the hallway, escalator or
design of the building where the escalator was located. Id. The
Cedeño Court further stated that “[w]ithout a dangerous condition,
defendant did not breach of the duty of care.” Id. (citing Cotto
v. Consol. Mut. Ins. Co., 16 P.R. Offic. Trans. 786, 795, 116
D.P.R. 644 (P.R. 1985). Likewise, here Plaintiff has failed to
show a dangerous condition and cannot show that defendant breached
a duty of care towards him.
Second, even if the Court were to conclude that a dangerous
condition existed, Plaintiff also failed to submit evidence that
Marriott and the other Defendants knew of the supposed dangerous
condition. For example, Plaintiff failed to include reports of
other incidents related to the mechanical arm or to the parking
garage in general. See e.g., Catalano v. Menard Inc., 2017 WL
2720432, at *5 (N.D. Ill. 2017) (“Plaintiff fails to show that
Menards knew or could have known of a dangerous condition. There
had been no complaints, reports, and no employee had seen any

Civil No. 18-1070 (RAM)

15

malfunctioning of the automatic doors.”) Plaintiff also failed to
allege any facts in his Opposition, nor did he proffer any evidence
to prove that Defendants had constructive or actual knowledge of
the

alleged

dangerous

condition.

(Docket

No.

14).

Instead,

Plaintiff focuses his Opposition on premises liability in general
terms and on the alleged contributory negligence attributed by
Defendants to Plaintiff in their MSJ. (Docket No. 14 at 7-9).
This is insufficient to conclude that a dangerous condition
existed, and that Defendants knew about it and failed to act. See
e.g. Carlo-Blanco v. Inmobiliaria Comercial, Inc., 59 F. Supp. 3d
399, 404 (D.P.R. 2014) (holding that a plaintiff failed to adduce
sufficient
reference
defendants

knowledge
to
in

of

defendant’s
this

case

a

dangerous
alleged
could

condition

knowledge
have

when

was

foreseen

his

that
or

only

“[t]he

reasonably

anticipated that in the fashion the cement on the ramp was kept,
that any prudent person could have walked over it, trip and fall,
like

the

plaintiff

precisely

experienced.”);

Smith

2017

WL

9121575, at *4 (finding that without evidence that La Concha hotel
was informed by the elevator manufacturer that Elevator #2 needed
more service calls than the standard, plaintiff cannot establish
that La Concha had actual knowledge of this need, should have
known, or breached its duty of care.); Situ v. O'Neill, 124 F.
Supp. 3d 34, 44 (D.P.R. 2015) (citation omitted) (“Notwithstanding
the heightened duty of care and protection, the hotel and its

Civil No. 18-1070 (RAM)

16

administrator are not liable for their guests' harm unless the
harm is reasonably foreseeable.”) 2
Third, the record shows that (1) Plaintiff had crossed in
front of the gate through the crosswalk “many times” before his
accident

without

incident

and

(2)

conceded

that

there

was

a

crosswalk for pedestrians marked on the floor. While he alleges
that the mechanical gate “struck him” while he was walking on the
crosswalk,

he

has

failed

to

offer

any

proof

as

to

how

the

Defendants caused his injury. For example, the Deposition excerpts
cited by Defendants reveal that Plaintiff knew of the existence of
the barrier gate he now alleges caused him physical injury. (Docket
No. 13-2 at 78, l. 1-6). Plaintiff likewise stated that there was
a pedestrian crosswalk and that nothing prevented him for looking
at the gate while going through the crosswalk. Id. at 80, l. 2-4
and 105, l.7-9. The Court also notes that Plaintiff answered “yes”
to

questions

from

Defendants’

counsel

during

the

Deposition

regarding if he had passed “many times before the accident” by the
parking area, which was adjacent to barrier gates of the entrance
and exit to the parking lot.

2

Id. at 77, l. 13-24.

The Restatement (Second) of Torts § 3434(A) also recognizes that “[a] possessor
of land is not liable to his invitees for physical harm caused to them by any
activity or condition on the land whose danger is known or obvious to them,
unless the possessor should anticipate the harm despite such knowledge or
obviousness.” Restatement (Second) of Torts § 343A (1965). As stated herein,
Plaintiff has not proffered proof that Defendants should have anticipated any
harm would come to Plaintiff because of the parking lot’s mechanical gate.

Civil No. 18-1070 (RAM)
Evidently,

Plaintiff

17
was

aware

of

the

gate

and

how

it

functioned when he passed by it before his incident. See e.g.,
Rodefer v. Hill's Pet Nutrition, Inc., No. IP 01-123-C H/K, 2003
WL 23096486, at *7 (S.D. Ind. 2003) (finding that Plaintiff failed
to show that he was not aware of the dangers of a “rapid-roll”
door because he “testified that he went through the door in
question thirty to forty times a day over the course of his fouryear employment with ECT” and that he “knew that the door would
come down if he cleared the photo eyes and no weight was on the
floor sensors.”).
Most glaringly, Plaintiff conceded that the only difference
between when he suffered an injury and all the other times he had
passed by the mechanical gate without incident was that before he
had not received a phone call. Id. at 97, l. 16-20. At the time of
the accident, however, he was on a call and was distracted. The
pertinent part of the Deposition reads as follows:
Q So you weren’t looking when the barrier
came down, because if you had been looking
you would’ve avoided it, right?
A Yeah, of course, yeah.
Q And why weren’t you looking?
A Because I received a call or
that got my attention, yeah.

something

Q Oka. So you were distracted by the phone
call?
A Yeah.

It had to be.

Civil No. 18-1070 (RAM)

18

(Docket No. 13-2 at 8, l. 4-13).
As the District Court of Puerto Rico has stated time and
time

again,

“even

though

an

owner

or

occupier

of

commercial

premises must exercise due care for the safety of its patrons, it
is not liable in tort without a showing of fault.” Cedeño, 251 F.
Sup. 3d at 370 (quoting Calderon-Ortega, 753 F.3d at 254). In the
case at bar, it is evident that a potential danger to Plaintiff
was “so apparent that he may reasonably be expected to discover
[it] and be able to protect himself.” Robles, 2016 WL 2637814, at
*2 (citation omitted). Moreover, Plaintiff acknowledged in his
deposition

that

he

did

not

protect

himself

because

he

was

distracted by a phone call. Given that Plaintiff has failed to
present evidence evincing a link between Defendants’ acts or
omissions to his injuries, Plaintiff’s claims under Article 1802
cannot survive summary judgment.
V.
For

the

foregoing

CONCLUSION

reasons,

the

Court

GRANTS

Defendants’

Motion for Summary Judgment at Docket No. 13. Judgment shall be
entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 18th day of March 2020.
S/ RAÚL M. ARIAS-MARXUACH
United States District Judge