USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 97-1269

LYNNE WOODS-LEBER AND ANTHONY LEBER,

Plaintiffs, Appellants,

v.

HYATT HOTELS OF PUERTO RICO, INC., ETC.,

Defendant, Appellee.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Dominguez, United States District Judge]

____________________________

_________________________

Before

Selya, Circuit Judge,

_____________

Gibson,* Senior Circuit Judge,

____________________

and Lynch, Circuit Judge.

_____________

_________________________

Iv n D az-L pez and

_______________

Gerardo A. Quir s-L pez, with

_______________________

Offices of Gerardo A. Quir s-L pez, P.S.C., were

____________________________________________

whom Law
___

on brief, for

appellants.

Hector F. Oliveras, with whom Luis Ram n Ortiz-Segura was on

__________________
_______________________

brief, for appellee.

_________________________

August 26, 1997

_________________________

_______________
*Hon.

John

R.

Gibson,

of

the

Eighth

Circuit,

sitting

by

designation.

SELYA, Circuit Judge.

SELYA, Circuit Judge.
______________

This appeal

arises out

of an

unwanted intrusion by a rabid mongoose into the

of a posh

luxury hotel.

guest.

The guest

entered

summary judgment

During its sojourn,

sued, but

to no

in the

avail;

I.
I.

the animal bit

the district

hotelier's favor.

Leber v. Hyatt Hotels of P.R., Inc.,

_____
___________________________

1996).

opulent environs

court

See Woods___ ______

951 F. Supp. 1028

(D.P.R.

We affirm.

THE MONGOOSE ATTACK AND ITS SEQUELAE

THE MONGOOSE ATTACK AND ITS SEQUELAE

Defendant-appellee Hyatt

Hotels of

Puerto Rico,

Inc.

(Hyatt) owns and operates the Cerromar Beach Hotel (the hotel) in

Dorado, Puerto Rico.

setting.

Its

mangrove

swamp

The hotel occupies a picturesque oceanfront

verdant grounds

which

is

are bordered

under

the

on

the west

protection

of

by a

the

Commonwealth's Department

of

the swamp

of Natural Resources.

lies Lakeside

Villas,

On the far side

a residential

which was being built at the time material hereto.

subdivision

Hyatt

has no

financial or other proprietary interest in the development of the

subdivision.

On

April

10,

1995,

at

approximately

5:00

plaintiff-appellant Lynne

Woods-Leber, a

guest, was

near the

Suddenly

without

hotel's

pool.

(and

provocation) a wild mongoose scurried

her.

any

p.m.,

sunbathing

apparent

into the pool area and bit

Because the mongoose carried rabies, Woods-Leber underwent

a series of painful inoculations.

A few

days

after

the

attack,

the

hotel

hired

an

exterminator, Pest Management International (PMI), to implement a

mongoose

control program.

PMI set

several

captured fifteen mongooses in a week's time.1

the

most

likely

mongooses living in

construction

explanation

for

and

PMI concluded that

infestation

was

that

the mangrove swamp had been disturbed by the

activity

at

Lakeside

eastward onto the hotel's grounds.

on the premises.

the

baited traps

Villas

and

had

migrated

The traps were left in

place

In

due

jurisdiction,

28

season,

U.S.C.

Puerto Rico's federal

for

personal

responsibility

brevis
______

Woods-Leber

1332(a)

under

and, following a

disposition, supporting

affidavits

(1994), and

district court.2

injuries

and declarations.

invoked

local

Her

sued

law.

motion

Hyatt

with

The plaintiff opposed

but made only one evidentiary proffer:

Hyatt in

suit sought damages

period of discovery,

its

diversity

denied

moved for

number

of

the motion

her husband's conclusory

recitation of his suspicion that a temporary food preparation and

storage area which had been installed near the pool functioned as

____________________

1The

plural of

"mongoose" is

a matter

of some

debate in

lexicographic circles.

See, e.g., Webster's Ninth New Collegiate

___ ____ ______________________________

Dictionary
__________

("mongoose .

767 (1989)

mongeese . . . .").
not

to

enter

throughout,

it.

. n,
_

pl mongooses
__

Having noted the debate, however,

Thus,

we express

no

while we
opinion

use
on

the
which

also
____

we choose

term "mongooses"
plural

noun

is

co-

linguistically preferable.

2Woods-Leber's husband,
plaintiff.
appeal
Of

Inasmuch as

his claim is

as if Woods-Leber were

course, our

Anthony

Leber,

joined

derivative, we

as

treat the

the sole plaintiff and appellant.

decision disposes

well.

of Anthony

Leber's claim

as

a mongoose magnet.3

On

December

Hyatt's motion.

could not be

30,

1996,

The court concluded,

court

in substance, that

and that it could not be

in negligence because it could not

to foresee the mongoose attack.

II.
II.

district

granted

Hyatt

held strictly liable because it had not exerted any

control over the mongoose,

1039.

the

held liable

reasonably have been expected

See Woods-Leber, 951 F. Supp. at

___ ___________

This appeal followed.

THE SUMMARY JUDGMENT STANDARD

THE SUMMARY JUDGMENT STANDARD

Summary judgment

"no genuine issue as

party is

is appropriate when the

to any material fact and

entitled to a

judgment as a

record shows

. . . the

matter of law."

moving

Fed. R.

Civ. P 56(c); see also Anderson

___ ____ ________

242, 247

factual

(1986).

The

to

that a

resolve the

issue

in favor

of

either

National Amusements, Inc. v. Town of Dedham, 43 F.3d 731,

_________________________
______________

735 (1st Cir. 1995).

the factual

affect

genuineness requirement signifies

controversy "must be sufficiently open-ended to permit a

rational factfinder

side."

v. Liberty Lobby, Inc., 477 U.S.

___________________

The materiality requirement signifies

controversy must

pertain to

an issue

that

which "might

the outcome of the suit under the governing law."

Morris
______

v. Government Dev. Bank, 27 F.3d 746, 748 (1st Cir. 1994).

____________________

Like the nisi prius court, we must evaluate the summary

judgment record

in the light

drawing all reasonable

most flattering to

inferences in

that party's

the nonmovant,

favor.

See
___

____________________

3The gist of Leber's statement

court's opinion.

is reprinted in the district

See Woods-Leber, 951 F. Supp. at 1033.

___ ___________

Coyne v.
_____

Despite

Taber Partners I, 53
_________________

this

judgment

improbable

advantage,

cannot

simply

inferences, and

F.3d 454, 457

however, the

rest

on

unsupported

party

(1st Cir.

1995).

opposing

summary

"conclusory

allegations,

speculation."

Medina_______

Munoz
_____

v. R. J. Reynolds Tobacco Co., 896

____________________________

1990).

she

F.2d 5, 8

(1st Cir.

To the contrary, at least with respect to issues on which

bears

properly

the burden

of

substantiated

trialworthy issue.

See
___

proof,

facts

the

nonmovant must

sufficient

to

Morris, 27 F.3d at 748;

______

identify

establish

Kelly v. United
_____
______

States, 924 F.2d 355, 358 (1st Cir. 1991).

______

Appellate review of an order

is plenary.

III.
III.

granting summary judgment

See Coyne, 53 F.3d at 457; Morris, 27 F.3d at 748.

___ _____
______

ANALYSIS
ANALYSIS

The

substantive

law

of

Puerto

Rico

See
___

governs

liability question in

this diversity action.

v. Tompkins, 304 U.S.

64, 78 (1938); Daigle v. Maine

the

Erie R.R. Co.

_____________

Med. Ctr.,

________

______

Inc. 14 F.3d 684, 689 (1st

____

claims under that law.

A.
A.

Cir. 1994).

_________________

The plaintiff makes

two

We consider them sequentially.

The Article 1805 Claim.

The Article 1805 Claim.
______________________

Article 1805 of the Civil Code, P.R. Laws Ann. tit. 31,

5144 (1992), imposes strict

of

an animal

for

liability on the possessor or user

any damages

which

the animal

Serrano v. Lopez, 79 P.R.R. 922, 927 (1957).

_______
_____

on

an Article

minimum,

animal.

1805

claim, a

that the defendant

See Ferrer
___ ______

v.

plaintiff must

56

See
___

In order to prevail

show,

owned, possessed, or

Rivera,
______

causes.

P.R.R. 480,

at a

bare

used the wild

482

(1940);

Redinger v. Crespo, 18 P.R.R.

________
______

106, 111 (1912).

This customarily

involves a showing that the defendant exercised control

animal.

See P.R. Laws Ann. tit. 31,

___

The

count,

district

court ordered

holding that Woods-Leber

tending to

show that Hyatt

Woods-Leber, 951 F.

over the

1480 (1993).

summary judgment

failed to present

on this

any evidence

controlled the rabid mongoose.

Supp. at 1035.

We agree.

See
___

person cannot

___________

control an animal of which

uncontradicted

he is completely unaware.

evidence indicates that

Hyatt had no

Here,

the

inkling of

the mongoose's existence, had no reason to suspect that mongooses

were lurking nearby, and received as jolting a surprise as Woods-

Leber when

evidence

the mongoose

of

either

struck.

In the utter

knowledge or

control,

absence of

the

any

district court

properly entered summary judgment on the Article 1805 claim.

The

plaintiff

result by arguing

endeavors

the mongoose

pins this

rather exotic theory

benefitted

devouring snakes

avoid

this

that a symbiotic relationship

Hyatt and

have

to

from

population in the

the

predictable

existed between

mangrove swamp.

to a suggestion that

mongooses'

and rodents, and

natural

Hyatt must

affinity

that this benefit

She

for

is legally

tantamount to control.

gossamer strands

of

This

argument is woven entirely from the

speculation and

surmise.

The

record

is

devoid of any evidence that mongooses patrolled the perimeters of

the hotel's

moreover,

grounds, performing

the

argument

is

pest control

unaccompanied

functions.

by

any

And,

meaningful

citation to applicable

is

factually

insufficient

legal authority.4

barren,

legally

to breathe life

In

sum, this argument

bankrupt,

and

into the plaintiff's

altogether

Article 1805

claim.

B.
B.

The Article 1802 Claim.

The Article 1802 Claim.
______________________

Article 1802 of the Civil Code, P.R. Laws Ann. tit. 31,

5141, imposes liability

her, or its

In broad

failure to

See
___

on any person or entity which, by his,

negligent acts or omissions, causes

perspective, Puerto Rico law defines

exercise due

diligence to

Coyne, 53 F.3d at 459;

_____

harm or damage.

negligence as the

avoid foreseeable

risks.

Malave-Felix v. Volvo Car Corp., 946

____________
_______________

F.2d 967,

971-72 (1st Cir. 1991).5

theory, a

plaintiff suing

To recover

for personal

on a negligence

injuries under

Article

1802 must establish (1) a duty requiring the defendant to conform

to a certain standard of conduct, (2)

proof of damage,

and

the

and (4) a causal connection

tortious

Gonzalez Padin,
______________

conduct.

17 P.R.

requirements cannot

inter

alia, that

thus, could

a breach of that duty, (3)

be

See
___

Sociedad de Gananciales
_________________________

Offic. Trans. 111,

satisfied unless

the injury

was

have been avoided

between the damage

125 (1986).

These

the plaintiff

proves,

reasonably foreseeable

had the defendant acted

v.

(and,

with due

____________________

4The lower court perspicaciously observed that this argument

was

"not

frivolous."

5In a
Rico

merely

novel,

but .

perilously

close to

the

Woods-Leber, 951 F. Supp. at 1035 n.5.

___________

premises case a

law ordinarily requires

showing of

negligence under

a demonstration of

occupier's actual or constructive

knowledge of the

Puerto

the owner's or

harm-causing

condition.

See Mas v. United States, 984 F.2d 527, 530 (1st Cir.
___ ___
_____________

1993).

care).

See Coyne, 53 F.3d at 459-60.

___ _____

The plaintiff contends

hotel-keeper owes

protection.

its

The law so

guests

that, under Puerto Rico

a heightened

provides.

duty

See, e.g.,
___ ____

of

law, a

care

and

Mejias-Quiros v.
_____________

Maxxam Property Corp., 108 F.3d

_____________________

425, 427 (1st Cir. 1997); Coyne,

_____

53

v. Axtmayer,
________

F.3d at

(1964).

458;

Pabon-Escabi
____________

Nevertheless, a hotel-keeper

guests' well-being.

494,

P.R.R. 20,

is not an insurer

29

of its

See, e.g., Goose v. Hilton Hotels, 79 P.R.R.

___ ____ _____
_____________

499 (1956) (holding that a hotelier is liable for a guest's

fall on hotel

known

90

of

premises only if the hotelier knew

preexisting

dangerous condition).

notwithstanding the heightened

duty of care and

or should have

Consequently,

protection, the

hotel-keeper is not liable for harm unless the harm is reasonably

foreseeable.

See Coyne, 53 F.3d at 460-61.

___ _____

In this case, the

reasonably foreseeable at

mongoose would attack

linchpin question is whether

the time and place in

a guest (for, without

it was

question that a

a foreseeable harm,

Hyatt could

not have

breached its

duty of

care by failing

to

implement a mongoose control program before the attack).

See id.
___ ___

at

in

460.

negative.

The

district

court

answered

See Woods-Leber, 951 F. Supp.

___ ___________

this question

at 1039.

the

We think that

Judge Dominguez got it right.

The

evidence as

to

knowledge is

telling.

point, the record permits only one conclusion:

knowledge,

actual

or

constructive,

existence or of the incipient

either of

On

this

that Hyatt had no

the

mongooses'

danger that they presented, at any

time

before

the attack.

involved in the

chief

of security) submitted affidavits

one at

of the

directly

keeper and the

hotel premises; that

presence of mongooses

otherwise in the vicinity; and

assault on Woods-Leber, no wild animal

bitten any hotel guest.

most

which made plain that a

before been seen on the

the hotel knew

mangrove swamp or

the

hotel personnel

matter (such as the head grounds

mongoose had never

no

The

in the

that, prior to

of any kind had ever

By the same token, there was no evidence

from which a factfinder could conclude, without rank speculation,

that

the temporary food

preparation and storage

area presented

any hazard or that Hyatt should have known the

construction

of

project near the mangrove swamp portended an influx

wild animals.

had been

there

Indeed, several previous construction projects

undertaken near the

was

inauguration of a

no

evidence

swamp without incident.

either

that

non-rabid

Finally,

mongoose,

unprovoked, was likely to bite a supine sunbather, or that rabies

was prevalent in the area.

We do

mongoose

not mean to

had never

guest, the

before

attack could not

Pabon-Escabi, 90 P.R.R.
____________

of

have been

invaded the

premises

have been foreseen.

at 25 (explaining that

foreseeability [does not

consequences

imply that, merely because

require] that

foreseen").

If,

and bitten

See generally
___ _________

"the requirement

the precise

say,

a rabid

risk or

an occupier

of

premises disregards a known general danger, or omits a precaution

regularly

taken by prudent

attack might

persons similarly situated,

well be foreseeable

a first

(and, thus, actionable).

See
___

Coyne, 53
_____

769 n.11

F.3d at 460; see also State

___ ____ _____

(Conn. 1993) (holding

v. Francis, 635 A.2d 762,

_______

that liability does

not require

specific foreseeability); Stevens v.

_______

Sch. Dist., 528

__________

N.W.2d 117, 120 (Iowa 1995)

Roundup Co., 666

___________

the

Des Moines Indep. Community

___________________________

plaintiff

P.2d 888, 891 (Wash.

offered

foreseeability, electing

no

evidence

instead

affidavits and declarations.6

reiterate, that parties

summary judgment

to

1983) (same).

to support

rely

on

We have warned

who permit the

record do so

(same); Pimentel v.
________

at their

the

But

here,

finding

of

defendant's

before, and today

movant to configure

peril.

See
___

the

Kelly, 924
_____

F.2d at 358.

We need go no further.

As the district court correctly

stated, "[t]he normal rule is that a person does not have

a duty

to prevent an attack upon another . . . by wild animals."

Woods______

Leber, 951 F.

Supp. at 1036 (citations omitted).

While the rule

_____

admits of

exceptions,

the plaintiff

evidence which sufficed

of those exceptions.

in

this case

to bring the mongoose

Since

reasonably

no

attack within any

a hotel-keeper, like any other owner

or occupier of premises, cannot be held liable

cannot

adduced

foresee,

the

lower

for that which it

court

did

not err

in

granting Hyatt's motion for summary judgment.

____________________

6This

presents

Woods-Leber
Ed.,
___

96

deposition

relies.

J.T.S.

34,

testimony

a marked
See,
___

contrast

to the

cases

e.g., Tormos-Arroyo v.
____ _____________

806

n.2

suggesting

(1996)

Department of
_____________

(plaintiffs

foreseeability);
J.T.S.

26,

on which

submitted

J.A.D.M.
________
10,435

v.

Plaza Carolina Shopping Ctr.,

_______________________________

93

(1993)

(plaintiff submitted statistical

evidence showing past incidence

of crimes in the area); Elba v. University of P.R., 125 P.R. Dec.

____
__________________
294,

306

(1990)

(plaintiff

submitted

indicating known high-risk areas).

cartographic

evidence

10

Affirmed.
Affirmed.
________

11