John G. Marshall v. Jose E. Perez Arzuaga, and Third-Party Avis Rent-A-Car of Puerto Rico, Inc., Third-Party John G. Marshall v. Jose E. Perez Arzuaga

Arzuaga. The accident occurred on a Before CAMPBELL, Chief Judge, road, straight and, during daylight by Mar- SELYA, TORRUELLA and Circuit admission, shall’s when conditions were Judges. clear and “visible.” CAMPBELL, LEVIN H. Judge. trial, Chief At Perez Arzuaga pri- testified that accident, driving or to the he had been August 23, 1982, On John G. Marshall right airport lane of the exit road. He Dodge his wife rented a 1982 Aries K stated that when he first saw Marshall’s from the Avis Rent-A-Car terminal located car, moving. he believed that was Not near the Luis Munoz Marin International approximately until away he was 30 feet Airport Juan, in San Puerto Rico. Mar- from the disabled vehicle did Perez Arzua- shall problem drove the vehicle without un- ga realize stationary. that the car was He August 27, 1982, til pothole, when he hit a attempted then to move into the left-hand causing right go front tire to flat. lane, but could not do so because a blue car changed Marshall the tire with the “bal- rapidly was approaching in that lane. type loon” spare, subsequently re- When Perez pass tried to between turned to the Avis terminal replace- for a the blue car on the left and Marshall’s ment tire. company changed The both right, disabled vehicle on the he miscalcu- tires; front tires but neither of the back at lated, hitting both Marshall and left trial, evidence demonstrated that the rear trial, rear side of the rental car. At Perez original tires equipment, having were been Arzuaga testified that he did not see Mar- on the 15,000 car for over nine months and shall the moment the accident oc- until miles. curred. After Avis’s personnel service replaced 23, 1983, April Marshall, On John his tires, two front Marshall drove from wife, and their two minor children initiated the rental facility onto the airport exit negligence road, against action Perez Arzua- a two-lane highway leading from ga in the United States District Court for airport. Marshall testified shortly that af- ter he turned onto road, the exit the District of Puerto juris- he Rico.1 Federal felt the predicated car diversity diction was on the “vibrating from the back end.” Un- (1982). parties, aware of U.S.C. Plain- vibration, source of he 1. Marshall’s wife was physical injuries. in the complaint alleged automobile at the The accident, apparently time of the of, but Arzuaga’s negligence suffered deprived no her subsequently filed an tiffs amended com- damage sustained.” Jimenez v. Pelegrina, Avis plaint included (1982). Rent-A-Car 112 P.R.R. The “causal joint Rico as a Puerto codefendant and principle nexus” party’s liability limits a theory underlying plain- tortfeasor. flowing hazards from its “ against compa- suit tiffs’ those hazards that ‘anticipated could be ” ny negligently leased Marshall a car by prudent person.’ Pacheco v. Puerto tire, worn thereby with defective and Rico Authority, Water Resources 112 P.R. putting him at for an risk accident of the 369, S. Ct. Official (1982) Translations 372 type that After days occurred. seven of (quoting Capital, Hernandez v. The 81 trial, the a plain- returned verdict for 998, (1960)). Rico, P.R.R. 1005 In Puerto tiffs, placing percent 40 of the responsibili- just jurisdictions, as in the common law Avis, ty for the percent accident on and 60 foreseeability is the touchstone of extra- — (it on Perez concluded John that liability. Cruz, contractual Rivera v. negli- contributorily Marshall not been -, 20, P.R.R. 87 (May 1987). J.T.S. 51 gent). damages totalling awarded Foreseeable events are those that may “ $750,000. by prudent ‘be calculated a conduct alert expected to eventualities that in the appeals judgment the Avis from entered ” Jimenez, course of life.’ 112 P.R.R. at below, claiming against it that the district (quoting Supreme 888 Court Spain, of by (1) refusing grant erred court to a di- 9, Judgment 1949); of November see also favor, (2) in company’s rected verdict Pesquera, Torres Trumbull v. 97 P.R.R. allowing witnesses, plaintiffs’ one of Ger- 329, (1969); 335 Andino Widow v. Puer of Rosenbluth, testify expert, ald to as an to Rico Water Authority, Resources 93 (3) failing to strike certain of Rosenbluth’s (1966). P.R.R. 178-79 appeal, statements. Plaintiffs also con- argues it is not liable Marshall’s tending that improperly the district court injuries could not have foreseen attorneys’ against refused assess fees sequence preceded exact of events Arzuaga. We affirm. But the accident. Court of argu- Puerto Rico has made that this clear I. ment, suggests prophets could liable, tortiously be found misunderstands Avis contends the district court erred requirement foreseeability: refusing to direct a verdict favor of the that, company. Avis insists as a matter foreseeability does not The rule mean law, the reasonably accident was not fore- precise risk the exact that the or result seeable; thus, the issue never should have which was encountered should have been jury. disagree. reached We factor foreseen. The essential is to be foresee, duty general a in a

under way, consequences particular type. of a Foreseeability A. precise allege It is no defense to course the full extent of the conse- pro- The substantive law Puerto Rico foreseen, quences could not be conse- diversity the rule of decision in this vides kind, being which in quences of such fact developed Under the law in the case.2 case happened. Commonwealth, liability requires tortious “the necessary Aqueduct “fault”3 and causal Puerto Rico both Gines v. Sewer (1962) wrongful Authority, (citing nexus between the act and P.R.R. consortium, among things, permit society, and a other 3. The evidence was sufficient find- children, though ing negligently services. The two not in Avis had leased to Marshall occurred, sought Thus, when the car ery accident recov- considering car with defective tire. deprivation pecuniary for losses such as properly refused to whether district court support expectancy of inheritance. favor, verdict we shall assume direct a in Avis’s negligent. Avis was Tompkins, Erie R.R. v. 304 U.S. 2. (1938). S.Ct. L.Ed. 1188 James, Harper 2 F. & F. proposition The Law Torts that when injury an is due (1956)); causes, see also Widow Andino v. to “concurrent” only— one cause Authority, Puerto Rico Water Resources the “efficient” cause—must be deemed the 177-79 (relying 93 P.R.R. damage cause of the or injury. Id. at Gines). Thus, Avis, according Perez Arzua- ga solely must be liable for inju- Marshall’s Among “consequences particular of a ries, since negligent driving his was the type” legally for which actor is “decisive fault.” Id. responsible consequences those attrib- reasonably utable foreseeable interven- We believe that Valle must be limited to forces, ing including the par- acts of third prior its own facts. Neither nor subse- Andino, ties.4 See Widow P.R.R. at quent case law in Puerto adopts Rico (defining “intervening cause” as a restrictive notion of efficient causation. injury cause of an that “comes into active example One recent Negron Orozco, operation producing the result after the police D.P.R. where depart- negligent actor’s act or omission has oc- ment of Puerto Rico was held liable for a curred”). negligent A defendant will not shooting death that police occurred in the liability by intervening be relieved of an station. assailant, Both the victim and the reasonably foreseeable, cause that was officer, off-duty an being were detained as intervening if the may even force have a result of a argument, heated during “directly” caused harm. An “un- Id. which the officer had threatened to shoot intervention, foreseen and abnormal” on the victim. The Court of Puerto hand, the other “breaks the chain of causal- Rico explicitly rejected the Common- ity,” shielding thus the defendant from lia- wealth’s contention that the officer’s crimi- bility. intervening Id. While as a rule (for nal act which the Commonwealth was parties acts third are more liable) not legal was the sole cause of the intentionally acts, foreseeable than harmful death: “The efficient and decisive cause of Inmobiliaria, see Estremera v. death is a combination [decedent’s] [the (1980)(citing Prosser, P.R.R. W. action, shooting his antagonist, officer’s] (4th 1971)), The Law Torts 282-83 ed. and the police omission of the officers in the ultimate determinant of liability is al- charge keeping order and security in the ways foreseeability Compare itself. Neg- police (em- station....” 113 D.P.R. at 921 Orozco, ron (de- 113 D.P.R. 921 phasis supplied); see also Widow Andi- act, fendant liable because intervening no, (“a 93 P.R.R. at 178 defendant is liable though criminal, intentional and was rea- if his proximate is a cause of foreseeable) sonably Cruz, with Rivera v. damage although might not be the — -, (1987) (no P.R.R. 87 J.T.S. 51 proximate sole cause damage”) of such liability since defendant had no reason to (emphasis original). anticipate intervening act). So, criminal question in this B. Judge Jury case is whether with a defective tire. Arzuaga’s negligent driving, which indis- foreseen when it rented Marshall a car putably “caused” type of risk that Avis should have Marshall’s injuries, was jury to determine whether Avis could rea- issue to the caused Marshall’s sonably have foreseen the accident that ^[1] Here, jury the district court allowed the was correct under federal injuries.5 Referring this recently common law set forth in

Despite this cir- intervening established cuit: doctrine, cause heavily Avis relies on Valle Co.,

v. American question International proximate Insurance causation is (1979), 108 P.R.R. 735 which it invokes for sometimes for the court and sometimes 4. This rule can also be Torts, 44, expressed (W. in the lan- ser & Keeton on at 303 Keeton 1984). guage of 5th ed. intervening risk creation: "Foreseeable risk, scope original forces are within the 5. Defendants do not claim the court’s in- negligence." and hence of the defendant’s Pros- improper. structions were only ordinary Not fact jury. for the It well be that in the person- instant also applica- al-injury but “evaluative questions, case outcome would be sub- (such legal standards as the con- tions stantially affected whether the issue ‘foreseeability’) legal cept judge ... decided jury. jury questions. In properly facts” Therefore, “outcome” the only were con- might case there be reason- where sideration, strong might case appear opinion difference of as to evalu- able saying that the federal court should question determinations ... ative practice. follow the state jury. for the one But there are affirmative countervail- Seamen, (1st 821 F.2d Springer ing considerations here. Cir.1987) (citing Prosser & Keeton Id. at at 900. S.Ct. (W. 1984)); Keeton 5th ed. see Torts 320-21 According Court, such “affirma- Ramsey, F.Supp. also LeBoeuf v. countervailing tive considerations” as the (D.Mass.1980) (“Applying federal interest in the would yield to a particular cause standard to case is a conflicting practice rule of state only in the performed by ordinarily the fact- function exceptional so finder.”). hypothetical case, far —and — where the state rule were “intended And it is federal law must con up rights bound with the definition of the responsibility trol the division of between obligations parties.” Id. at judge jury here. See Molinar v. West 78 S.Ct. at 900. This is not that To case. ern Electric hold otherwise argu- would countenance an Cir.1975). Rico, Puerto Since a civil law proves ment that too much. For if Puerto cases, jurisdiction, juries uses in never civil practice judicially Rico’s of determined there is of course no Commonwealth law on damages is to intimately deemed be “bound Amendment, subject.6 The Seventh up” with the substantive rules of liabil- tort however, decidedly litigants most affords ity, practice the then —since obtains in all right in court in Puerto the to federal Rico civil cases—the same is of true the whole jury, see, e.g., by trial LaForest v. Autori of Puerto Rico’s civillaw. And right the to dad las de de Fuentes Fluviales Puerto jury diversity in trial in cases federal court Rico, 443, (1st Cir.1976), 536 F.2d 446-47 in Puerto Rico would be no more. is and it federal law that must define the right of contours that in this case. share the We dissent’s concern about shopping forum our in- apparently decision In v. Byrd Ridge Blue Electrical Rural It appear inequitable vites. does that suc- 525, Inc., 533-40, Cooperative, 356 U.S. 78 plaintiffs 893, diversity cessful in federal 898-902, (1958), court 2 5.Ct. L.Ed.2d 953 damages have Puerto Rico their deter- strong the Supreme Court held that by jury, mined be to may inclined jury, federal interest in the function deep pocket redistribute from the and in preserving the essential character of shallow, court, similarly while required diversity a federal in a situated victors that relegated case the federal rule on commonwealth’s courts are this division conflicting judicially customarily prevail duties should over a determined—and damages state rule. The conceded that this more awards. But we Court modest— necessarily result not disparity was outcome-neutral: have held before that this in dam- Inmobiliaria, language suggests judge’s 6. But Estremera This that a determina- cf. (1980) (quoting P.R.R. Tobenas, foreseeability 3 Castan tion in Puerto Rico resembles (10th Espanol ed. Derecho Civil type inquiry jurisdictions law common 1962)): See, usually jury. e.g., Hoy, Healy leave to the difficulty knowing up point what [T]he (“proximate 115 Minn. N.W. can take be one the causal relation can never ordinarily question cause is of fact for by is resolved completely doubt, rules in a manner that abstract by good jury, to be solved the exercise of com- so, satisfactory, more in case of sense in of the mon the consideration evidence judge should resolved case”). particular of each pondering on his based convictions and after all circumstances. ages awards in the federal courts and the Jury’s C. The Conclusion is insufficient commonwealth courts Avis’s assertion that the district court principles warrant a deviation from the letting erred in the foreseeability issue Laforest, federal common law. See go jury is tantamount saying (applying at 446-47 federal F.2d standard people reasonable could not differ on verdicts). jury for review Hanna v. Cf. Arzuaga’s negligent driving whether Perez 466-67, Plumer, 380 U.S. 85 S.Ct. reasonably was Spring- foreseeable.7 See 1136, 1141, 14 (1964) (“ L.Ed.2d ‘Outcome- Seamen, er v. 876. This analysis was determination’ never intended talisman.”). position to serve as a And it is no is untenable. Estimation of the that means clear to us the sort of forum types of risks associated with automobile shopping arguably engendered by the re breakdowns, negligent and the incidence of pursuit preference here —the not of a sult driving risks, appro- relation to these rules, between two substantive but rather priately province jury, within the preference aof between two modes of repository of the common sense of the com- reckoning consequences single of a munity. people— Reasonable depending, rule —is the aimed to evil Erie miti perhaps, personal experiences on their with gate. Hanna, 380 U.S. at S.Ct. tires, busy highways, negli- automobile (Harlan, concurring) (noting at 1146 J. gent may disagree fellow indeed travelers — litigants may preference perfect have a —a reasonably on whether Avis could have ly permissible preference federal —for consequences foreseen the unfortunate reasons, any e.g., court for number of negligence its appellant here.8 But asks us relative attraction of the Federal Rules of Procedure). Civil people to conclude that reasonable could dissenting colleague’s ficiently 7. We see no basis for our similar to warrant our attention. In suspicion ap- Equipment have in effect Hairston v. Alexander Tank & plied (1984), "equivalencia the discredited de condi- 310 N.C. 311 S.E.2d 559 defendant liability theory negligent servicing ciones" here. It is car far from dealer’s of a wheel led to merely plaintiff's breaking obvious that the found Avis liable automobile down on a nar- among inspecting damage because its plain- the "concate- row road. While might nation of causes of which lead to tiff was run over driver. The injury.” 881, Pelegrina, See 112 D.P.R. Court of North Carolina found the Jiminez (1982) (discussing possibility granting the of trial court had erred in the car dealer’s n.o.v., equivalence judgment citing such an untoward result under the motion for the “well-set- theory); foreseeability accord Prosser & Keeton on Torts tled” rule that the of an interven- (W. 1984) (noting ing properly jury: at 266 Keeton 5th ed. act was for the standard). same risk under a "but for” causation jury We hold that on the facts of this case a jury's Arzuaga's negli- The that Perez conclusion might readily Haygood find that defendant gent driving reasonably was the sort of risk reasonably could have foreseen the subse- perfectly foreseeable Avis is consistent with quent acts of Alexander and the resultant adecuda,” the rule of "causalidad the touchstone 1-85, barely harm that occurred on six min- which, concedes, foreseeability. of the dissent is away Haygood utes and 3.5 miles from the course, possible jury Of it is made its dealership. driving Alexander's criterion, impermissible on an decision such as was, noted, Appeals as the Court of inexcusa- equivalency theory, deep pocket; or the but not, however, highly improba- ble. It was so hardly it would be irrational for the to have extraordinary ble and an occurrence in this Arzuaga’s intervening neg- concluded that Perez ligence series of events as to bear no reasonable con- sufficiently “extraordinary” was not by Haygood’s nection to the harm threatened liability. cut off Avis’s That the district original negligence. and, judge member of the Puerto Rico bar —a Id. at 569. formerly, judiciary, of its see note course, Hairston, infra negligible utility of is of —denied defendant’s motions for directed ver- determining appropriate legal standard to n.o.v., judgment dict and further confirms our Nonetheless, apply to the facts Hairston's here. independent view reached after careful research reasoning persuasive, is at least once it is real- precedent, fully of Puerto Rico that the case is liability ized that in both cases turns on the consistent with Puerto Rico substantive law. standard, wit, application of the same foreseeability. Reyes-Cardona the rule of Cf. Co., (1st Cir.1982) 8. While Penney the substantive law of Puerto Rico is J.C. 694 F.2d here, controlling (noting a case from the common law that differences between the civil law jurisdiction presents ap- of North Carolina facts suf- and the common law sometimes are more issue, disagreement education, on experience, training, this or not words, testify opinion thereto in the of an that the conclusion the form other or otherwise. here unreasonable. reached was We unwilling to do so. In Mercado v. Wollard Equip- Aircraft ment, Cir.1978), F.2d

II. purported we stated that “whether a ex- pert sufficiently qualified testify is in a trial, of At the issue whether Avis was within matter the district court’s discre- of revolved around condition tion, its and decision will be reversed when the left rear tire Marshall drove upon showing of clear error.” Accord away facility day from of the Avis on the Garbincius v. Boston Edison Complicating inquiry accident. (1st Cir.1980). prior the fact that to the initiation was The district court did not commit clear suit, from Avis had removed the tire finding error in Rosenbluth suffi- disposed only physi- car and it. The “knowledge, skill, experience, cient train- tire brought evidence of the at cal forth ing, or education” to as testify expert an snapshots trial were two Polaroid taken cause tire’s deflation. As was while after accident and the tire was brought trial, at out quali- Rosenbluth’s unavailable, on the the tire still car. With fications include substantial education in focus of the shifted onto case the two technology physical automobile sci- expert witnesses Avis and the Marshalls ences; prior ownership Automobile called, each of whom offered ex- different Services, Inc., Technical company planations why the tire deflated. responsible was for the maintenance ap- plaintiffs When their moved to have proximately vehicles; teaching experi- witness, Rosenbluth, qualified as Gerald an ence at various educational levels of auto- expert, objected, asserting Avis that he servicing; mobile maintenance and and his expertise analysis. in tire failure lacked employment at the time of trial as an The district court the objection. overruled expert automotive for the State Arizona. court also overruled most of Avis’s Whether not took Rosenbluth courses objections specific aspects of Rosen tires, focusing exclusively on his extensive testimony. appeal, bluth’s On once background his automotive inevitable —and again raises challenges a number of to exposure problems of tire maintenance qualifications testimony, Rosenbluth’s provided adequate an basis failure — none which find to have A we merit. for the court district to exercise its discre- discussion of the most these serious of letting testify. tion in favor him claims follows. Labs, Payton F.2d v. Abbott (1st Cir.1985)(that spe- witness “not a A. Qualification an Rosenbluth as giving cialist in the field in he is which his Expert opinion admissibility affects not the of his provides opinion weight may place Fed.R.Evid. 702 that the jury but the it”).9 on technical, scientific, or other special- [i]f

ized knowledge will assist the trier Partiality B. Expert the fact to understand the or to evidence issue, quali- determine that, a fact in a witness if Rosen even Avis contends skill, expert by fied as an knowledge, qualified, bluth his were otherwise testimo- Moreover, real). brief, however, parent sup- appellate than Hairston is where its did Avis port objected proposition jury’s that the demonstrate it below on these result case, be, grounds, present though may and our search of record found controversial it no objection (although such it show within did that Avis lies the bounds of reason. vigorously cross-examined Rosenbluth on the quality ability Avis also that photographs contends because the evi and his them). dence of the condition of the tires two We was the draw conclusions from therefore pictures, photo Polaroid Rosenbluth had to be a need not the claim. United States v. address See graphic expert Ven-Fuel, (1st Cir.1985). expert. in addition to a tire No 758 F.2d ny should have been excluded because he III. “partisan was a witness.” As evidence of Following the conclusion of the tri cites, partiality among Rosenbluth’s al, plaintiffs imposition moved for the things,. plain- other that Rosenbluth and attorneys’ against fees Avis and Perez Ar repeatedly attorney tiffs’ talked on the zuaga pursuant to Puerto Rico R.Civ.P. case; phone about the that as late as three 44.1(d).10 The district court denied the mo prior to trial months Rosenbluth and the tion, finding (1) that Avis’s conduct did not attorney discussing were various theories justify an award of fees and although deflate; as to what caused the tire to and Perez Arzuaga was “obstinate” as defined suggested evidentiary that Rosenbluth rule, by plaintiffs “speci failed to methods to demonstrate to the which fy[ type ... ] of work detail[ ] plaintiffs’ theory of the condition of performed, spent the hours on various the tire and method of its deflation. tasks and requested whether the fee assuming, deciding, Even without that prevailing consistent with the rate in the partiality might disqualify expert an wit- community.” ness, we at a loss to see how the appealed only Plaintiffs have from that preceding “evidence” demonstrates that part of the district denying court’s decision was improperly Rosenbluth biased. Avis against Arzuaga. award of fees presented has not evidence that Rosenbluth They contend that once the court found agreed Rather, to lie on the stand. obstinate, that Perez had been examples it part has listed are of the nor- erred completely denying the award of mal communication that place must take disagree. fees. We lawyer expert

between a and the he has express 44.1(d), Under the explain hired to terms of Rule aspects the technical of the the trial court (ex- has broad discretion in generally case. See decid- Fed.R.Evid. 703 ing whether to pert may award fees: opinion base his on facts ex- plained to him hearing). before obstinate, party Where a has been impose

court shall in judgment its on Remaining C. Objections person such payment of a sum for attorney’s fees. challenges Avis raises specif to a host of opinions ic (Emphasis added.) statements made Rosen See also Serrano bluth, claiming they contrary (1961)(“the were to Lugo, 83 P.R.R. award facts, proven guesswork, based on attorney’s or were discretionary fees is with the misleading. court”). otherwise We do not find say that, trial We cannot on the any opinions case, these statements or were facts of this the district court abused utterly unsupported so by the evidence by refusing to its discretion impose any reversing warrant Arzuaga. district court’s deci fees on Perez The case involved defendants, sion to them allow into evidence. cursory Avis’s two and even a exami arguments, logic, which went to the coher nation of the record demonstrates that ence, weight expert’s testimony plaintiffs heavily proving focused Avis’s rather admissibility, properly than its liability. were Without a verified account of the left to the Payton plaintiffs’ consider. tasks on attorney spent Labs, time, Abbott Cir. his the district court could not assess 1985); Robinson v. Agen plaintiffs’ Watts Detective how much of efforts were devot 729, cy, (1st Cir.1982), 685 Avis, F.2d 739 against cert. ed to the case and how much denied, 459 against U.S. 103 S.Ct. 75 to the Arzuaga. case Perez The (1983); L.Ed.2d 436 Mannino v. Interna court was likewise unable to determine the Co., Manufacturing tional Arzuaga’s obstinacy effect Perez had on (6th Cir.1981). 853 plaintiffs’ presentation Any of their case. Ramos, law, Airways 10. In Pan American World. v. Puerto Rico the Commonwealth’s Rules of (1st Cir.1966), 357 F.2d 341 we held that when a Civil Procedure determine whether an award of attorneys’ sitting diversity applying appropriate. federal court is and fees is non,” against of qua prescribes fees sine liability award when the speculative. entirely harm would have thus been would not have occurred had defend Declining speculation prudently. engage such ant acted See Sociedad de Ga — within the district court’s discre nanciales González Padin was well -, (1986). D.P.R. 86 J.T.S. 23 at tion.1 “equivalencia While de condiciones” re

Affirmed. today, mains viable justify cannot alone causation under the Puerto Rico Civil Code. TORRUELLA, Judge (dissent- Circuit Brau, y Perjuicios See M. Daños Extra ing). contractuales en Puerto Rico at § 11.03[6] of- is The outcome this decision that Avis (2d 1986). ed. happened the insurer of all that becomes A Spanish commentator to the Civil Code pro- negligence as a result of its initial “equivalencia has criticized de condi- tire, viding irrespective proba- a bad of the ciones”: intervening taking of the cause bility cause, If all the acts considered the place. any law in This is not the civil law responsibility is widened field of with, jurisdiction I and which am familiar extraordinarily, requiring either the dis- certainly not Puerto Rico. Avis was not responsibility among tribution of all the required improbable, legally to foresee the possible agents of said cause or arbi- remote, extraordinary and intervention a trary selection one of them. For party third tortfeasor whose traffic viola- example: suppose an automobile crashes tions were the cause of Marshall’s into wall injured a and the driver is be- i.e., injuries, injured Marshall was not a pavement, cause of an oil stain in the explosion, injured by tire he was Pérez of the car improperly brakes had been hitting him. Arzuaga’s car repaired by mechanic, a and pedestrian Furthermore, view, my public poli- imprudently crossed the street at the cy liability choices as boundaries Thus, responsibility time. must be dis- traditionally in Puerto Rico— among shop, tributed owner judge juris- reserved in this civil law stain, pedes- the author of the oil and erroneously delegated diction—were here arbitrarily trian instead select or one jury, encouraging shop- thus forum responsible. as them Either result ping possibly leading and to inconsistent “equivalencia follows from de condi- among outcomes state and federal cases. always requires ciones” which hypo- judgment among thetical the factors I. which cannot be discarded from concluding they pro- mind without jury ap There reason to believe the duced the harm. plied John Stuart Mill’s now discredited (Translation ours). emphasis Sistema causation, view of which treats causation Civil, supra de Derecho at 634-35. all as the total of conditions a result. Enneccerus, See 2 Tratado de Derecho Precisely “equivalencia de condi (1947). “Causation, No. at Civil in the ciones” no limit to sets the endless chain of logical sense, totality is the ele causation, of those Court of Puerto indispensable phenomenon ments for a adopted Rico has the norm of “causalidad Picaso, (translation ours). place” take 2 Diez v. Pelegrina adecuada.” See Jiménez Es llón, (1982); 634 pinet, Sistema de Derecho Civil 112 D.P.R. 704-05 So Gu (3d 1982). theory, ed. This characterized as Corp., ciedad de Gananciales Jerónimo “equivalencia (1974). de condiciones” “conditio 103 D.P.R. e.g., Education, “obstinancy”

11. We further observe is a Rose v. Nashua Board (“we concept peculiar expe- Cir.1982) to Puerto Rico F.2d are reluctant judge, rienced district a member the bar of interfere with a reasonable construction of state state, sitting judge, Puerto Rico and a former member the Puerto law made district in the judiciary, equipped practic- Rico was well to assess and who is familiar with that es"). law state’s See, apply in the circumstances of this case. 854 which, objectively adequate” is is the “most

adequate setting cause one view speaking, ordinarily produces liability, Scaevola, the harm ac- Código bounds of see 31 general (2d 1974), cording experience. regardless to Santos Civil 361 ed. of Puer- Briz, (1963). 215 expertise Derecho de Daños to Rico’s juries want with civil cases. Pan American Air- World Cf. key agree I to “causalidad ade Ramos, 341, ways v. 342 foreseeability. cuada” is Rivera Torres v. Cir.1966). — D.P.R. -, Corchado, 87 J.T.S. Cruz 20, 1987). (May clarify point, To 51 majority cursorily Yet the dismisses this however, in terms an event is foreseeable purported civil law tradition in favor of a occurring its probability of its and not practice right federal “disputed or to have A.F.F., possibility. Pacheco v. questions regarding foreseeability of fact” 296, (1982). Although 300-01 it is D.P.R. jury.13 point submitted to the The is if possible plaintiff that someone could cause litigated this tort case had been before a party negligence, harm reason of third judge in the local courts outcome could at probable this was not the time of Avis’ However, well have been different. inadequate rental. A cause is if it has majority why adduces no reason the “fed- come about other “extraor having eral interest” in causation sent to circumstances,” dinary as Pérez Ar such important is more than zuaga’s conduct this case. See Tratado preserving uniformity value of of decision Civil, supra at de Derecho 68-69. why right or the Seventh Amendment’s by jury compels trial such a result. See here, applied intervening negli- As Byrd Ridge Cooperative, v. Blue 356 U.S. gence of Pérez unforeseeable —if 537 n. 78 S.Ct. 901 n. to Avis—constitutes the sole cause of (1958) (“We L.Ed.2d 953 intimate no view Brutau, 2 Puig the harm. See Fundamen- upon question the constitutional whether (1983). tos de Derecho Civil No. 3 at 101 right by jury protected trial in feder- intervening An cause is one occurs which al courts the Seventh em- Amendment independently subsequent from and statutory braces the factual issue of immu- (Avis), party act of the first asserted, here, nity when as as an affirma- effectively breaks the chain cau- negligence tive defense a common law sation party’s between that action”); Wright, see also 19 C. A. Miller & y Perjuicios harm. Daños Extracon- Cooper, E. Federal Practice and Proce- at tractuales en Puerto Rico § 11.05[1] (1982). majority’s 4508 at dure The § (1984). 724-29 holding I, shopping invites forum like II Tompkins, the Court Erie R. Co. v. 64, 74-75, 817, 820, 82 L.Ed. U.S. S.Ct. The denial of the directed verdict motion (1938), cannot to it. subscribe constitutes error for two rea reversible First, sons. causation —whether it be a Ill question fact, for the law both—is Second, judge jurisdiction. majority’s resolve in a civil law even standards Inmobiliaria, Rac, juror See Estremera no reasonable could found ade- have (1980) (quoting quate 109 D.P.R. 852 3 Castán causation. Karelitz v. Damson Oil Tobeñas, (1st Cir.1987). Español y Corp., 820 F.2d Derecho Civil Común (1978)).12 judge’s point injuries Foral 237 of The cause of Marshall’s was not review, 12. In the Sentence of 5 June judicial it does not alter the fact that the judge Spain quaes- Court of held that causation was a trial decides the issue. juris. Español y tio See Derecho Común Civil Foral, Manresa, supra practice” at 236 n. But in 12 13. The "federal its crit- is not without (1973), Código Español Comentarios al Civil at ics. See Prosser and Keeton on Torts 45 quotes Green, January (5th 1984) (quoting from a of 30 1951 to ed. Rationale Prox- Sentence ("... "pure the effect that causation one of fact." imate Cause the limitations 122-27 Civil, Código supra imposed upon liability always See also at 361. While this a matter court”)). import debate be of the standard for the intervening tire. The the defective adequate injuries neg cause of the was the America, UNITED Appellee, STATES of

ligent driving party, of a third Ar Pérez v. zuaga. responsible should not be held GLENN, Kenneth Robert party for a act of a third over Defendant, Appellant. Briz, which it has no control. 3 Santos (1973) (“responsibility Derecho Civil America, Appellee, UNITED STATES of up point should extend in which the path of can causation be directed and domi will”) (translation by person’s nated BENEVIDES, Manuel J. ours). Further, Avis could no more have Defendant, Appellant. foreseen that Pérez would drive 86-2040, Nos. 86-2041. recklessly and hit Marshall than it could foreseen that Pérez Arzuaga go have United States Court of Appeals, ing by, to drive or that Marshall’s tires First Circuit. going go were soft they where did. responsible Would Avis be if instead of Heard June 1987.

being Arzuaga, hit Pérez Marshall had Sept. Decided 1987. up by Arzuaga? been held Pérez I think not the risk robbery, as the risk driving,

of reckless ordinary, is not an

usual, and foreseeable risk of a car rental company’s negligence. Torres, See Rivera —

supra; Negrón Noriega, D.P.R.

-, (1986); 86 J.T.S. 75 see also Estrem

era, 856-57; 109 D.P.R. at Eagle Jacob v. F.Supp.

Star Insurance

(D.P.R.1986) (applying Puerto Rico sub law).

stantive only way for a to hold Avis

responsible Arzuaga’s for Pérez interven-

ing by applying “equivalencia conduct is de

condiciones” and hence concluding that

anything happen that can after a tire blow-

out is “foreseeable” Avis. Yet under

the current doctrine of “causalidad adecua- probable

da” it is you not that because you

have a flat tire will be run over

reckless driver. It possible but not

probable. get When we into the realm of

possibilities rather probabilities than we

are in speculation. the area of This then “deep pocket” theory

leads to the of recov-

ery and converts Avis into an insurer. See y Perjuicios

Daños Extracontractuales en 11.03[6](c)

Puerto Rico at

I respectfully dissent.

Case Details

Case Name: John G. Marshall v. Jose E. Perez Arzuaga, and Third-Party Avis Rent-A-Car of Puerto Rico, Inc., Third-Party John G. Marshall v. Jose E. Perez Arzuaga

Court Name: Court of Appeals for the First Circuit

Date Published: Sep 1, 1987

Citation: 828 F.2d 845

Docket Number: 86-1006, 86-1007

Court Abbreviation: 1st Cir.