828 F.2d 845 (1st Cir. 1987), 86-1006, Marshall v. Perez Arzuaga

Docket Nº:86-1006, 86-1007.
Citation:828 F.2d 845
Party Name:John G. MARSHALL, et al., Plaintiffs, Appellees, v. Jose E. PEREZ ARZUAGA, et al., Defendants and Third-Party Plaintiffs, Appellees. Avis Rent-A-Car of Puerto Rico, Inc., Third-Party Defendant, Appellant. John G. MARSHALL, et al., Plaintiffs, Appellants, v. Jose E. PEREZ ARZUAGA, et al., Defendants, Appellees.
Case Date:September 01, 1987
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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828 F.2d 845 (1st Cir. 1987)

John G. MARSHALL, et al., Plaintiffs, Appellees,


Jose E. PEREZ ARZUAGA, et al., Defendants and Third-Party

Plaintiffs, Appellees.

Avis Rent-A-Car of Puerto Rico, Inc., Third-Party Defendant,


John G. MARSHALL, et al., Plaintiffs, Appellants,


Jose E. PEREZ ARZUAGA, et al., Defendants, Appellees.

Nos. 86-1006, 86-1007.

United States Court of Appeals, First Circuit

September 1, 1987

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Charles A. Cordero with whom Cordero, Colon & Miranda, Old San Juan, P.R., was on brief, for Avis Rent-A-Car of Puerto Rico, Inc.

Herbert W. Brown, III with whom Peter J. Satz, and Calvesbert & Brown, San Juan, P.R., were on brief, for John G. Marshall.

Before CAMPBELL, Chief Judge, and TORRUELLA and SELYA, Circuit Judges.


On August 23, 1982, John G. Marshall and his wife rented a 1982 Dodge Aries K from the Avis Rent-A-Car terminal located near the Luis Munoz Marin International Airport in San Juan, Puerto Rico. Marshall drove the vehicle without problem until August 27, 1982, when he hit a pothole, causing the right front tire to go flat. Marshall changed the tire with the "balloon" type spare, and subsequently returned to the Avis terminal for a replacement tire. The company changed both front tires but neither of the back tires; at trial, evidence demonstrated that the rear tires were original equipment, having been on the car for over nine months and 15,000 miles.

After Avis's service personnel replaced the two front tires, Marshall drove from the rental facility onto the airport exit road, a two-lane highway leading from the airport. Marshall testified that shortly after he turned onto the exit road, he felt the car "vibrating from the back end." Unaware of the source of the vibration, he continued to drive for approximately another 200 yards. At that point, the vibration was, in Marshall's words, getting "really bad." Consequently, he stopped the car on the far right side of the right-hand lane, unable to pull over any further because the highway had neither a shoulder nor a breakdown lane. He had travelled less than a mile from the Avis facility.

Marshall then got out of the car to investigate the cause of the disability, allegedly first checking for oncoming traffic. When he reached the left rear tire, he noticed that it was "just about completely flat." After kicking and cursing the tire, he began walking back toward the center of the car. He was immediately struck and injured by a passing car driven by Jose Perez Arzuaga. The accident occurred on a straight road, during daylight and, by Marshall's admission, when conditions were clear and "visible."

At trial, Perez Arzuaga testified that prior to the accident, he had been driving in the right lane of the airport exit road. He stated that when he first saw Marshall's car, he believed that it was moving. Not until he was approximately 30 feet away from the disabled vehicle did Perez Arzuaga realize that the car was stationary. He then attempted to move into the left-hand lane, but could not do so because a blue car was rapidly approaching in that lane. When Perez Arzuaga tried to pass between the blue car on the left and Marshall's disabled vehicle on the right, he miscalculated, hitting both Marshall and the left rear side of the rental car. At trial, Perez Arzuaga testified that he did not see Marshall until the moment the accident occurred.

On April 23, 1983, John Marshall, his wife, and their two minor children initiated this negligence action against Perez Arzuaga in the United States District Court for the District of Puerto Rico. 1 Federal jurisdiction was predicated on the diversity of the parties, 28 U.S.C. Sec. 1332 (1982). Plaintiffs

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subsequently filed an amended complaint that included Avis Rent-A-Car of Puerto Rico as a codefendant and joint tortfeasor. The theory underlying plaintiffs' suit against Avis was that the company had negligently leased to Marshall a car with a defective and worn tire, thereby putting him at risk for an accident of the type that occurred. After seven days of trial, the jury returned a verdict for plaintiffs, placing 40 percent of the responsibility for the accident on Avis, and 60 percent on Perez Arzuaga (it concluded that John Marshall had not been contributorily negligent). The jury awarded damages totalling $750,000.

Avis appeals from the judgment entered against it below, claiming that the district court erred by (1) refusing to grant a directed verdict in the company's favor, (2) allowing one of plaintiffs' witnesses, Gerald Rosenbluth, to testify as an expert, and (3) failing to strike certain of Rosenbluth's statements. Plaintiffs also appeal, contending that the district court improperly refused to assess attorneys' fees against Perez Arzuaga. We affirm.


Avis contends the district court erred in refusing to direct a verdict in favor of the company. Avis insists that, as a matter of law, the accident was not reasonably foreseeable; thus, the issue never should have reached the jury. We disagree.

A. Foreseeability

The substantive law of Puerto Rico provides the rule of decision in this diversity case. 2 Under the case law developed in the Commonwealth, tortious liability requires both "fault" 3 and "the necessary causal nexus between the wrongful act and the damage sustained." Jimenez v. Pelegrina, 112 P.R.R. 881, 885 (1982). The "causal nexus" principle limits a party's liability for hazards flowing from its negligence to those hazards that could be " 'anticipated by a prudent person.' " Pacheco v. Puerto Rico Water Resources Authority, 112 P.R. S.Ct. Official Translations 369, 372 (1982) (quoting Hernandez v. The Capital, 81 P.R.R. 998, 1005 (1960)). In Puerto Rico, just as in the common law jurisdictions, foreseeability is the touchstone of extracontractual liability. Rivera v. Cruz, --- P.R.R. ----, 87 J.T.S. 51 (May 20, 1987). Foreseeable events are those that may " 'be calculated by a prudent conduct alert to eventualities that may be expected in the course of life.' " Jimenez, 112 P.R.R. at 888 (quoting Supreme Court of Spain, Judgment of November 9, 1949); see also Torres Trumbull v. Pesquera, 97 P.R.R. 329, 335 (1969); Widow of Andino v. Puerto Rico Water Resources Authority, 93 P.R.R. 168, 178-79 (1966).

Avis argues it is not liable for Marshall's injuries because it could not have foreseen the exact sequence of events that preceded the accident. But the Supreme Court of Puerto Rico has made clear that this argument, which suggests only prophets could be found tortiously liable, misunderstands the requirement of foreseeability:

The rule of foreseeability does not mean that the precise risk or the exact result which was encountered should have been foreseen. The essential factor is to be under a duty to foresee, in a general way, consequences of a particular type. It is no defense to allege that the precise course or the full extent of the consequences could not be foreseen, the consequences being of such kind, which in fact happened.

Gines v. Puerto Rico Aqueduct and Sewer Authority, 86 P.R.R. 490, 496 (1962) (citing

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2 F. Harper & F. James, The Law of Torts 1147 (1956)); see also Widow of Andino v. Puerto Rico Water Resources Authority, 93 P.R.R. 168, 177-79 (1966) (relying on Gines).

Among the "consequences of a particular type" for which a negligent actor is legally responsible are those consequences attributable to reasonably foreseeable intervening forces, including the acts of third parties. 4 See Widow of Andino, 93 P.R.R. at 178 (defining "intervening cause" as a cause of an injury that "comes into active operation in producing the result after the actor's negligent act or omission has occurred"). A negligent defendant will not be relieved of liability by an intervening cause that was reasonably foreseeable, even if the intervening force may have "directly" caused the harm. Id. An "unforeseen and abnormal" intervention, on the other hand, "breaks the chain of causality," thus shielding the defendant from liability. Id. While as a rule intervening negligent acts by third parties are more foreseeable than intentionally harmful acts, see Estremera v. Inmobiliaria, Inc., 109 P.R.R. 1150, 1156 (1980) (citing W. Prosser, The Law of Torts 282-83 (4th ed. 1971)), the ultimate determinant of liability is always foreseeability itself. Compare Negron v. Orozco, 113 D.P.R. 921 (1983) (defendant liable because intervening act, though intentional and criminal, was reasonably foreseeable) with Rivera v. Cruz, --- P.R.R. ----, 87 J.T.S. 51 (1987) (no liability since defendant had no reason to anticipate intervening criminal act). So, the question in this case is whether Perez Arzuaga's negligent driving, which indisputably "caused" Marshall's injuries, was the type of risk that Avis should have foreseen when it rented Marshall a car with a defective tire.

Despite this established intervening cause doctrine, Avis relies heavily on Valle v. American International Insurance Co., 108 P.R.R. 735 (1979), which it invokes for the proposition that when an injury is due to "concurrent" causes, one cause only--the "efficient" cause--must be deemed the legal cause of the damage or injury. Id. at 739. Thus, according to Avis, Perez Arzuaga must be solely liable for Marshall's injuries, since his negligent driving was the "decisive fault." Id.

We believe that Valle must be limited to its own facts. Neither prior nor subsequent case law in Puerto Rico adopts this restrictive notion of efficient causation. One recent example is Negron v. Orozco, 113 D.P.R. 921, where the police department of Puerto Rico was held liable for a shooting death that occurred in the police station. Both the victim and...

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