This аppeal requires us to delve into the tort law of Puerto Rico. Appellant sued the United States pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671
et seq.,
for damages arising out of a slip-and-fall accident. The district court judge dismissed the suit, finding that appellant failed to establish any negligence leading to the accident.
THE FACTS
The facts are rather simple. Appellant was shopping at the army commissary in Fort Buchanan, Puerto Rico. Approaching thе checkout counter with her groceries, she slipped on some milk and sustained serious injuries. Several people came to her assistance, including a commissary employee. Aсcording to appellant, the employee indicated that she knew about the milk prior to the accident and expressed regret at not cleaning it up earlier. The employee, Ms. Toledo, denies making these statements or having any knowledge of the spilt milk prior to the accident.
Appellant filed an FTCA claim against United States in the District Court of Puer-to Rico. As the FTCA directs thе district court to employ local tort law, the district court applied the laws of Puerto Rico. The district court judge thus found that appellant was a business invitee at the commissary because she was a shopper. The district court judge also found that local law required appellant to establish that the commissary was negligent before the commissary could be liable for her injuriеs. Specifically, the district court judge imposed upon the plaintiff the burden of showing that the store owner had actual or constructive notice of the dangerous condition and time to curе it.
After hearing from the witnesses at the bench trial, the district court judge determined that there was insufficient evidence to show negligence by the commissary. The district court judge found the testimony of Ms. Toledо more credible than the testimony of appellant as to whether the commissary knew of the milk. Lacking such evidence, the district court dismissed appellant’s claim.
LEGAL ANALYSIS
The issue in this case is whether Puerto Rico law imposes a burden upon business invitees who suffered a slip-and-fall to show that the store owner possessed notice and an opportunity to cure. Puerto Rico law is uncleаr on this point. We therefore trace the development of Puerto Rico law to divine the result that the Puerto Rico Supreme Court would have reached in this case.
Our analysis begins with the Puertо Rico civil code. Section 5141 provides that “[a] person who by an act or omission causes damage to another through fault or negligence shall be obliged to repair the damage so done. Concurrent imprudence of the party aggrieved does not exempt from liability, but entails a reduction of the indemnity.” P.R.Laws Ann. tit. 31, § 5141 (1991). The statute does not define “fault or negligence” in a business inviteе slip- and-fall situation, but the Puerto Rico Supreme Court has addressed this issue on several occasions. The Court’s pronouncements, however, have been inconsistent. We are required to analyze the cases in an attempt to reach the correct result in this case. We proceed in chronological order.
We begin with
Gutiérrez v. Bahr,
The Court followed the instruction of Gutiérrez in Goose v. Hilton Hotels, 79
*529 D.P.R. 523 (1956). In Goose, hotel guests wearing bathing suits were required to use a сertain elevator and stairway to go to the pool. The stairway was wide and slippery, but equipped with only one railing. Because of the stairway’s condition, a hotel guest fell. Focussing on the fact that the stairs should have had more than one railing, the Court found the stairway unreasonably and foreseeably dangerous. From this finding, the Court determined that the hotel possessed constructive knowledge of the danger. As the requirements of § 5141 were satisfied, the Court imposed liability upon the hotel. The Court also noted that store customers “generally, expect[] that the aisles and passаge ways open to customers are free from ... slippery spots.” Id. at 530 n, 2.
In
Aponte v. Melendez,
By doing away with the knowledge element of § 5141,
Aponte
imposed a strict liability or, as the Puerto Rico courts sometimes say, a
res ipsa loquitur
standard upon store оwners, in which a dangerous condition in the store led to a per se finding of negligence.
Cf. Dopico-Fernández v. Grand Union Supermarket,
The Puerto Rico Supreme Court followed the instruction of the
Aponte
case in a line of cases imposing liability on the store owner when a dangerous condition existed, without a specific finding of knowledge of the condition.
See, e.g., Feliciano v. Escuela de Enfermeras,
Notably, in the Feliciano case four justices joined in a vigorous dissent. 1 The dissenters argued that the Court imposed liability without any showing of actual or constructive knowledge of water, or any other dangerous condition, which caused plaintiff to slip. The dissenters concluded that the majority had imposed a res ipsa loquitur standard on the property owner: because a slip-and-fall occurred, the Court presumed that the owner was negligent. The dissenters found the majority’s holding contrary to the weight of Puerto Rico negligence law, but failed to acknowledge Aponte.
In seeming response to the concerns of the dissent in Fеliciano, the Court incorporated language of actual and constructive knowledge in its opinion in
Cotto v. Consolidated Mutual Insurance Co.,
The Court disallowed her claim, finding her bare allegаtion that the floor was slippery insufficient to impose liability. The Court stated that its previous cases, including Gu tiérrez, Goose, and Aponte, “imposed liability when [the cases] involved existing dangerous conditions within the business premises in question, which conditions were known -to the owners or should have been knоwn to them.” Id. at 650. *530 Thus, actual or constructive knowledge of the hazard was an element of the tort.
The Court went on, however, to base its holding on the lack of a dangerous condition in the store. This holding wаs consistent with the Aponte line of cases, in which the inquiry focussed on the existence of a dangerous condition. The Cotto language on actual or constructive knowledge, on the other hand, was not cоnsistent with those cases. Indeed, a cite to Aponte for the proposition that knowledge of the hazard is an element of the tort was incorrect.
This leaves us in the uncomfortable position of сhoosing whether to follow the Aponte line of cases, in which actual or constructive knowledge is not an element of the tort, or whether to follow Cotto and the cases prior to Aponte, under which such knowledge is an element of the tort.
We believe that Cotto and the cases prior to Aponte are more consistent with the language of § 5141, and thus contain the correct result in this case. Those cases give effect to all of the language of the statute, including the language concerning fault and negligence. In contrast, Aponte and its progeny virtually deleted those words from the statute. Furthermore, Cotto, as the most recent case, provides the most authoritative description of the current state of the law. To the extent that its languagе is inconsistent with Aponte and its progeny, Cotto represents an evolving understanding of § 5141. To disregard Cotto thus would require us to select potentially outdated law.
As we find Cotto to reflect the current state of the law in Puerto Rico, we agree with the district court on the result of this case. Section 5141 requires, as an element, an affirmative showing by the plaintiff that the defendant was negligent. This showing, in turn, requires a demonstration that the defendant has either actual or constructive knowledge of a dangerous сondition. As the plaintiff failed to meet this burden, the district court properly dismissed the case.
Affirmed.
ORDER OF COURT
Entered: March 9, 1993
Petitioner requests that we convene an
en banc
panel to certify this case to the Supreme Court of Puerto Rico, notwithstanding that this prayer was not made to the district court, and in fact, was never made to us until after the panel decision issued. We. decline this tardy invitation.
See Croteau v. Olin Corp.,
The petition for rehearing en banc and further certification of issue to Supreme Court of Puerto Rico is denied.
ORDER OF COURT
Entered: March 9, 1993
The petition for rehearing is denied. See Internal Operating Procedure X.C.
Notes
. A total of nine Justices sat on the Puerto Rico Supreme Court when Feliciano was decided.