Banks et al v. Ashford 1369 Hospitality LLC et al

Filing 46

OPINION AND ORDER denying 26 motion for summary judgment. Defendant's motion for summary judgment is denied. Signed by US Magistrate Judge Bruce J. McGiverin on 8/28/2024. (MK)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MICHELE F. BANKS, et al.,
Plaintiffs,
v.

Civil No. 23-1055 (BJM)

ASHFORD 1369 HOSPITALITY LLC, et
al.,
Defendants.
OPINION AND ORDER
Plaintiffs Michele F. Banks (“Michele”), Andre M. Banks (“Andre”), and their conjugal
partnership (collectively, the “Plaintiffs”) allege that Ashford 1369 Hospitality LLC, Universal
Insurance Company, and several unnamed defendants (collectively, the “Defendants”) are liable
for negligent maintenance at the AC Hotel in Condado, San Juan. Docket No. (“Dkt.”) 1. Plaintiffs
seek damages under Article 1536 of the Puerto Rico Civil Code, P.R. Laws Ann. Tit. 31, § 10801
(“Article 1536”), for injuries suffered after Michele slipped and fell in the hallway leading to the
hotel’s rooftop pool deck. Id. at ¶ 9. Defendants responded to the allegations, Dkt. 12, and moved
for summary judgment in their favor, Dkt. 26. Plaintiffs opposed, Dkt. 28, Defendants replied,
Dkt. 34, and Plaintiffs sur-replied, Dkt. 43. This case is before me by consent of the parties. Dkt.
14.
For the reasons set forth below, Defendants’ motion for summary judgment is DENIED.
BACKGROUND
The following facts are drawn from Plaintiffs’ complaint and the parties’ Local Rule 56
submissions. I have omitted portions of the proposed facts that state conclusions of law or that I
deem irrelevant.
Plaintiffs Michele and Andre Banks are married and reside in the State of New York. Dkt.
26-2 at ¶ 1. They visited Puerto Rico in June 2021 to attend birthday celebrations. Dkt. 1 at 4. They

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stayed at the AC Hotel in Condado, San Juan, checking in on June 10 and checking out on June
14. Id.; Dkt. 26-2 at ¶ 5. On the afternoon of June 11, 2021, at or about 4:15 p.m., Plaintiffs exited
the elevator at the rooftop of the hotel and, while walking towards the outdoor pool along the lefthand side of the hallway, Michele slipped and fell to the ground. Id. at ¶ 6. Both Plaintiffs had
previously walked through the same area earlier that afternoon. Id. at ¶ 13. Michele underwent
surgery to treat injuries to her left knee, left ankle, and right hand, and was referred to courses of
physical therapy. Dkt. 1 at ¶¶ 28-29. The complaint alleges Michele continues to suffer from
physical and mental pain due to the fall. Id. at ¶ 30-31. Andre claims mental anguish damages in
connection with his wife’s injuries. Id. at ¶ 44.
The hallway where Michele fell is an open, covered space that leads to the outside pool
area with no door or air conditioning. Dkt. 26-2 at ¶ 12. On the right-hand side of the hallway are
washrooms used by hotel guests coming from the pool area. Dkt. 28-1 at 14. The hotel keeps a
permanent sign in the hallway reading “wet floor please watch your step” – Michele collided with
this sign when she fell. Dkt. 26-5 at 25. A square non-slip rug lies between the hallway and the
pool area to reduce the amount of water guests track into the hallway after using the pool. Dkt. 262 at ¶ 25. The hotel provides towels to guests at the pool area so that they can dry themselves off
before going back to the elevators, though they do not explicitly require or advise guests to do so.
Id.; Dkt. 28-2 at 6. The hotel assigns a housekeeping employee to the rooftop to monitor for
hazardous conditions, and there is a sweeper in the hallway to dry the floor if it gets wet. Dkt. 262 at ¶ 25. Security employees perform regular safety inspections. Id. The record is not clear about
how frequently cleanings and security inspections are performed in practice. 1 The parties sharply

Carlos Alers, claim adjuster for defendant Universal Insurance, mentions in his incident report that the hotel had a
protocol where cleaning rounds are performed every half-hour. Dkt. 28-7 at 8. However, Plaintiffs allege that the area
where Michele slipped was left uninspected for 45 minutes or potentially longer. Dkt. 28-2 at 6.
1

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disagree about whether the floor was wet at the time of Michele’s fall. See Dkt. 26-2 ¶¶ 18-19;
Dkt. 28-2 at 3, 8 ¶ 3; Dkt. 34-1 at 17; Dkt. 43-1 at 19.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when the movant shows that “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A dispute is “genuine” only if it “is one that could be resolved in favor of either party.”
Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir. 2004). A fact is “material” only if
it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). The moving party has the initial burden of “informing the district court
of the basis for its motion, and identifying those portions” of the record “which it believes
demonstrate the absence” of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986).
The court does not act as trier of fact when reviewing the parties’ submissions and so cannot
“superimpose [its] own ideas of probability and likelihood (no matter how reasonable those ideas
may be) upon” conflicting evidence. Greenburg v. P.R. Mar. Shipping Auth., 835 F.2d 932, 936
(1st Cir. 1987). Rather, the court must “view the entire record in the light most hospitable to the
party opposing summary judgment, indulging all reasonable inferences in that party’s favor.”
Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990). And the court may not grant summary
judgment “if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248.
DISCUSSION
This case is brought under the federal court’s diversity jurisdiction, so the substantive law
of Puerto Rico applies. Baum-Holland v. Hilton El Con Mgmt., LLC, 964 F.3d 77, 87 (1st Cir.

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2020). Plaintiffs filed suit under Article 1536 of the recently amended Puerto Rico Civil Code,
which replaced Article 1802 as Puerto Rico’s general tort statute. Silvas v. Hilton Int’l of P.R.,
LLC, No. 21-1597, 2024 U.S. Dist. LEXIS 21882, 2024 WL 404951 at *7 (D.P.R. Feb. 2, 2024).
“Articles 1536 and 1802 have provisions that are extremely similar and thus can be used
interchangeably.” Id. (internal citation omitted). Article 1536 provides that “[a]ny person who by
fault or negligence causes damage to another shall be obliged to repair it.” 31 L.P.R.A. § 10801.
“To succeed on a negligence-based tort claim, a plaintiff must establish four essential elements:
(1) a duty requiring the defendant to conform to a certain standard of conduct, (2) a breach of that
duty, (3) proof of damage, and (4) a causal connection between the damage and the tortious
conduct.” Blomquist v. Horned Dorset Primavera, Inc., 925 F.3d 541, 547 (1st Cir. 2019) (internal
citation omitted). “[L]iability will only arise if the damages complained of were reasonably
foreseeable to the defendant.” Irvine v. Murad Skin Research Labs., Inc., 194 F.3d 313, 322 (1st
Cir. 1999).
Hotels generally owe “a heightened duty of care towards their guests.” Blomquist, 925 F.3d
at 547. “In carrying out its duty of care, a hotel must act as would a prudent and reasonable person
under the circumstances.” Id. With respect to a negligent maintenance claim, a hotel breaches its
duty of care if the plaintiff can show that 1) a dangerous condition existed, 2) the hotel knew or
should have known of the condition, 3) the hotel did not take the precautions of a prudent and
reasonable person to avoid or remedy the risks the condition created, and 4) the hotel’s failure to
take reasonable precautions created a foreseeable risk of harm which proximately caused the
plaintiff’s injury. Id.
In moving for summary judgment, Defendants concede that they owed a duty of care to
Plaintiffs and do not dispute that Michele and Andre suffered cognizable injuries. Instead, they

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claim that 1) Plaintiffs fail to present any evidence of a dangerous condition, 2) Defendants did
not have the requisite knowledge of any such condition, 3) Defendants satisfied their duty of care
through reasonable precautionary measures, and 4) Plaintiffs’ injuries were not foreseeable
consequences of, or proximately caused by, Defendants’ maintenance of the hallway. Dkt. 26-1 at
5-12. Since each of these elements is an essential component of Plaintiffs’ negligence claim,
summary judgment should be granted in Defendants’ favor if they prevail on any one of them.
However, as discussed above, the standard of review is favorable to Plaintiffs, who simply need
to show that a reasonable jury could potentially find in their favor on each element.
I.

Existence of Dangerous Condition
Plaintiffs claim that the hallway floor was wet and slippery at the time of Michele’s fall,

which courts routinely recognize as a dangerous condition for negligence liability purposes. See,
e.g., Kahan v. Hilton Worldwide, Inc., No. 14-1355, 2015 U.S. Dist. LEXIS 162484 at *17-18
(D.P.R. Dec. 2, 2015) (holding that a wet floor is a dangerous condition). Defendants do not contest
that a wet floor, abstractly, could be a dangerous condition. Rather, they claim that Plaintiffs fail
to present evidence that the floor was wet. Dkt. 26-1 at 11-12.
Defendants’ argument is unavailing. In her deposition testimony, Michele claims that she
“slipped on water” and that “the floor seemed wet” as she fell. Dkt. 28-3 at 3. She also claims that
her pants were wet after she fell, suggesting that the floor she fell onto may have been wet. Id. 2
Plaintiffs point to the video recording, wherein an employee can be seen squeegeeing the floor
several minutes after the fall, as further evidence the floor was wet. Dkt. 28-2 at ¶ 16. As for the
video itself, Plaintiffs argue that it shows the floor was wet or is at least inconclusive and subject

Andre Banks’ deposition testimony is less clear – he states that there was “water running down the other side of that
corridor” and that he could “see water from that side, not our side.” Dkt. 28-4 at 4. Whether and to what extent this
contradicts Michele’s testimony is more appropriately weighed by the jury at trial rather than the court at summary
judgment.
2

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to reasonable difference in interpretation. Dkt. 28-1 at 12-13. Defendants counter by raising
inconsistencies in Plaintiffs’ deposition testimony and claiming that the video of the fall
conclusively shows that the floor was not wet. Dkt. 34 at 2-3. Given the evidence on the record,
whether the floor was wet is a genuine dispute of fact that a reasonable jury could decide either
way. Weighing the evidence and interpreting the video are appropriately left to the trier of fact.
II.

Knowledge of Dangerous Condition
Defendants next claim that they did not have the required actual knowledge of any

dangerous condition for negligence liability to arise. Dkt. 26-1 at 10-11. Defendants’ argument on
this point is unavailing.
There appears to be little evidence on the record that Defendants actually knew the hallway
floor was wet prior to Michele’s fall. However, knowledge in negligent maintenance cases can
also be imputed if the defendant should have known about the dangerous condition – referred to
as “constructive knowledge.” Carlo-Blanco v. Inmobiliaria Comercial, Inc., 59 F. Supp. 3d 399,
403 (D.P.R. 2014). “[T]o establish 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.” Id. (citing Ramos Rosado v. Wal–Mart, 165 P.R.D. 510, 513–515 (2005)).
Viewing the record in the light most favorable to Plaintiffs, the evidence allows for
Defendants’ constructive knowledge to be reasonably inferred. They knew the floor was prone to
getting wet, as evidenced by their permanent warning sign, non-slip rug, and apparent
acknowledgement that guests would occasionally enter the hallway wet. See supra p. 2; Dkt. 28-1
at 14. Plaintiffs also raise genuine issues of fact as to whether Defendants’ measures were sufficient
to prevent hazardous conditions persisting for an unreasonable amount of time. Based on the

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deposition testimony of Carlos Alers, Plaintiffs assert the possibility that the hallway area may
have been left unchecked for up to 45 minutes. Dkt. 28-1 at 11; Dkt. 28-7 at 8-9. The record
suggests that the hotel’s policy required employees to inspect the area every half an hour. Dkt. 287 at 8. What the actual frequency of inspection was in practice, and whether this was infrequent
enough to allow a dangerous condition to exist for an unreasonable length of time, are matters for
the jury.
III.

Reasonable Precautionary Measures
Defendants’ third argument is that they took reasonable precautionary measures to comply

with their duty of care. Plaintiffs, however, bring sufficient evidence to avoid summary judgment
on this point.
With precautionary measures, it is always possible to argue after the fact that more could
have been done to prevent an injury. This alone does not establish liability; the hotel is only
required to exercise reasonable care. See Cotto v. Consol. Mut. Ins. Co., 116 D.P.R. 644, 650
(1985) (“[T]he owner of [a] business is not an insurer of the safety of business visitors, and his
duty extends only to the exercise of reasonable care for their protection”) (emphasis added). That
said, “[t]he inquiry as to whether the hotel acted as a prudent and reasonable person is case-specific
and fact-dependent.” Blomquist, 925 F.3d at 548. “In negligence cases, determinations of
foreseeability and of whether a defendant acted reasonably fall within the province of the jury.
Hence, a court should be cautious in using the summary judgment device to dispose of such cases.”
Situ v. O’Neill, 124 F. Supp. 3d 34 at 47 (D.P.R. 2015) (citing TSC Industries, Inc. v. Northway,
Inc., 426 U.S. 438, 450, n. 12, 96 S. Ct. 2126, 48 L. Ed. 2d 757 (1976)).
Defendants point to several measures taken to reduce the risk of slips and falls in the
hallway. The hotel 1) provided towels to all guests at the pool area for them to dry themselves off

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before entering the building, 2) had a non-slip rug between the pool area and the hallway to prevent
guests from bringing in water, 3) kept a sweeper next to the towel rack in the hallway for hotel
employees to keep the floor dry, 4) assigned a housekeeping employee at all times on the rooftop
to monitor for hazards, 5) had security employees perform rounds of inspections to identify and
eliminate dangerous conditions, and 6) had a permanent warning sign reading “wet floor please
watch your step” in the hallway to alert guests of slippery conditions. Dkt. 26-1 at 8. Plaintiffs take
issue with several details concerning these measures. They argue that 1) the hotel should have
enforced a requirement for guests to dry off before entering the hallway, or at least had a sign on
the pool deck advising them to do so, 2) the non-slip rug was too small, 3) employee inspections
were insufficiently frequent, and formal protocols insufficiently documented, and 4) the wet floor
sign was poorly placed and the message font was too small. Dkt. 28-1 at 6-12. They also point to
some additional measures that Defendants could have taken but didn’t – they could have installed
fans and dehumidifiers in the area to reduce the build-up of moisture and keep the area dry. Id. at
11. A reasonable jury could agree with Plaintiffs and conclude that Defendants failed to exercise
reasonable care to prevent the floor from getting wet and slippery.
The hotel’s warning sign alerting guests of potential slipperiness is an important safety
measure but is not dispositive of reasonable care. Courts in this district have held that “there is no
obligation to protect the visitor against dangers which are known to him, or which are so apparent
that he may reasonably be expected to discover them and be able to protect himself.” SanchezPares v. Mapfre P.R., No. 18-1917, 2021 U.S. Dist. LEXIS 21116, 2021 WL 359985 at *13
(D.P.R. Feb. 2, 2021). “There are, however, many situations in which the possessor cannot
reasonably assume that a warning will be sufficient.” RESTATEMENT (SECOND) OF TORTS § 344(d)
(Am. Law Inst. 1965). “The visitor is entitled…to assume that proper care has been exercised to

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make the premises safe for him…”. Mas v. United States, 784 F. Supp. 945, 948 (D.P.R. 1992).
Consequently, courts in this district are reluctant to grant summary judgment to defendants who
provided plaintiffs with a warning but otherwise arguably exercised insufficient care. See PereyraCarrasco v. United States, No. 14-1225, 2015 U.S. Dist. LEXIS 141244 at 19-21 (D.P.R. Oct. 14,
2015) (denying the government’s summary judgment motion for plaintiff’s slip and fall in an
obviously wet corridor, despite the presence of warning signs, concluding that the overall
reasonableness of the defendant’s measures to prevent slips and falls was a jury question); Willis
v. Rio Mar Resort, No. 21-1515, 2023 U.S. Dist. LEXIS 161770 at *40-41 (D.P.R. Sept. 11, 2021)
(“[O]ne issue is to determine that a warning was given. A separate issue is whether the warning
was adequate to appraise a person of the risk posed…a reasonable jury could still find that [the rip
current warnings given] did not communicate the true degree of risk of swimming in the ocean…”).
Giving dispositive weight to a single safety measure – the presence of a warning sign – on the
theory that a plaintiff cannot recover whenever they were warned of a risk incentivizes business
owners to post omnipresent warning signs but do little else to keep their premises safe.
Plaintiffs also claim that the warning sign was insufficiently visible given its font size and
placement towards the far end of the hallway from the elevators. Dkt. 28-1 at 9. Neither party
appears to dispute that the sign was in Plaintiffs’ line of sight, which is important in determining
visibility. See Mardones v. Levimar Guesthouse, Inc., No. 22-1431, 2023 U.S. Dist. LEXIS
195924, 2023 WL 7167598 at *11-12 (D.P.R. Oct. 30, 2023) (angle of the warning sign rendered
line-of-sight visibility a jury question); Marquez v. Case de España de Puerto Rico, 59 F. Supp.
3d 409, 416 (D.P.R. 2014) (warning sign was on one side of a doorway, ambiguity as to which
way plaintiff walked through the door rendered the sign’s visibility a jury question). However,

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whether the sign was sufficiently legible based on Plaintiffs’ arguments, notwithstanding its lineof-sight visibility, is a matter for the jury to consider in evaluating Defendants’ safety measures.
In sum, a reasonable jury could decide in Plaintiffs’ favor and determine that Defendants’
safety measures were insufficient to meet their duty of care.
IV.

Proximate Cause and Foreseeability
Defendants’ final argument for summary judgment is that Plaintiffs’ injuries were not

proximately caused by, nor reasonably foreseeable consequences of, their maintenance of the
hallway floor. Defendants claim that there had been no fall or accident in the hallway in the year
before Michele fell. Dkt. 26-1 at 12. They also claim that “falling or slipping is not a foreseeable
consequence of a floor that is not wet,” and that even if the floor was wet, it was not wet for an
unreasonable amount of time. Id. Last, they claim the injury was not caused by their negligence,
but rather by Michele’s “disregard[ing]” of the warning sign. Id.
“[D]eterminations of foreseeability…fall within the province of the jury” and “a court
should be cautious in using the summary judgment device to dispose of such cases.” Situ, 124 F.
Supp. 3d at 47. “[I]t is foreseeable that a wet floor is likely to cause injury.” Vazquez-Filippetti v.
Banco Popular De P.R., 504 F.3d 43, 50 (1st Cir. 2007). Whether the floor was wet, how long it
may have been wet for, and the efficacy of the hotel’s warning sign are jury questions for reasons
already discussed. Further, lack of accident in the hallway in the preceding year does not, on its
own, render Michele’s fall unforeseeable. See Woods-Leber v. Hyatt Hotels of P.R., 124 F.3d 47,
52 (1st Cir. 1997) (“We do not mean to imply that, merely because a rabid mongoose had never
before invaded the premises and bitten a guest, the attack could not have been foreseen…[i]f, say,
an occupier of premises disregards a known general danger, or omits a precaution regularly taken
by prudent persons similarly situated, a first attack might well be foreseeable”). And to the extent

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Defendants claim Michele’s own negligent “disregard[ing]” of the warning sign proximately
caused her injury, “[u]nder Puerto Rico law, assumption of risk in the [] sense [of] comparative
negligence, is an inappropriate vehicle to grant summary judgment…as a matter of law, summary
judgment cannot be granted based on the argument that Plaintiff’s own negligence caused her fall.”
Ayala-Martinez v. P.R. CVS Pharm., LLC, No. 19-2098, 2022 U.S. Dist. LEXIS 78399, 2022 WL
1289356 at *10 (D.P.R. April 29, 2022). Plaintiffs’ evidence of the wet floor and arguments
concerning Defendants’ inadequate safety measures are sufficient to put foreseeability and
proximate causation before the jury.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is DENIED.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 28th day of August, 2024.
/s/ Bruce J. McGiverin
BRUCE J. MCGIVERIN
United States Magistrate Judge