Clemente v. United States, Civ. No. 778-73

• Court: United States District Courts. 1st Circuit. District of Puerto Rico
• Writing for the Court: Speiser, Krause & Madole, Washington, D. C., for plaintiffs
• Citation: 426 F. Supp. 1
• Parties: Vera Zabala CLEMENTE et al., Plaintiffs, v. The UNITED STATES of America, Defendant.
• Docket Number: 779-73,999-73,Civ. No. 778-73,1000-73 and 1096-73.
• Decision Date: 04 February 1977

426 F. Supp. 1

Vera Zabala CLEMENTE et al., Plaintiffs,
v.
The UNITED STATES of America, Defendant.

Civ. Nos. 778-73, 779-73, 999-73, 1000-73 and 1096-73.

United States District Court, D. Puerto Rico, San Juan Division.

February 4, 1977.

Speiser, Krause & Madole, Washington, D. C., for plaintiffs.

Michael J. Pangia, Dept. of Justice, Washington, D. C., Julio Morales Sanchez, U. S. Atty., District of Puerto Rico, San Juan, P. R., for defendant.

OPINION AND ORDER

TORRUELLA, District Judge.

The Government has filed a "Motion for Reconsideration" to the Opinion and Order entered herein on November 24, 1976.

426 F. Supp. 2

Before discussing the merits of said Motion, we are constrained to correct an erroneous impression created by Counsel for Defendant, in quoting out of context the Court's Order of August 11, 1976. Defendant chose to file post-trial briefs limited to the issue of the "discretionary function" defense, contrary to the directives of our Order of August 11, 1976, wherein the parties were required to file proposed findings of fact and conclusions of law together with their briefs. Because of this situation an over-burdened Court is now forced to consider matters which should properly have been brought to its attention at the time post-trial briefs were filed rather than by way of reconsideration.

The gist of Defendant's present Motion is the contention that F.A.A. Order SO 8430.20 C cannot be the basis for an action under Puerto Rican law, and thus under the Federal Tort Claims Act. Defendant further claims that the acts or omissions of the Government were not the proximate cause of the crash. We disagree on both points.

The Federal Tort Claims Act, 28 U.S.C. § 1346(b), permits civil tort actions for money damages against the United States caused by the negligent or wrongful act or omission of Government employees under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

The fountainhead of tort law in Puerto Rico is Article 1802 of the Civil Code (31 LPRA 5141), which states in its relevant part:

"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. . . ." (Emphasis supplied).

Without unnecessarily digressing into pedantic legal philosophy, suffice it to say that this article establishes what is probably the broadest basis for tort liability in any jurisdiction of the United States.

In the leading case of Reyes v. Heirs of Sánchez Soto, 98 P.R.R. 299 (1970), the Supreme Court of Puerto Rico stated, at pages 303-304 thereof:

"The concept of fault of Sec. 1802 of the Civil Code — 1930 ed. — is infinitely embracing, as ample and embracing as human conduct is. J. Casares, in his `Diccionario Ideológico', 2d ed. 1963, defines guilt as `fault more or less serious, committed knowingly and willfully.' And `fault' as `defect in acting.' Cabanellas states that `guilt' in its ample sense means any fault, willful or not, of a person which produces a wrong or damage, in which case `guilt' is equivalent to `cause.'" (Emphasis supplied).

The Court goes on to state (in footnote 1) that "the Saxon concept of civil fault is equally embracing" and then cites Black's Law Dictionary's definition of "fault":

"An error or defect of judgment or of conduct; any deviation from prudence, duty, or rectitude; any shortcoming, or neglect of care or performance resulting from inattention, incapacity, or perversity; a wrong tendency, course, or act; bad faith or mismanagement; neglect of duty." (Emphasis supplied).

See also Puig Brutau, "Fundamentos de Derecho Civil" (1956), Tomo II, Volumen II, pp. 676-683; Manresa, "Código Civil Español", 1951 Ed., Vol. XII, pp. 637-659.

In this case we are concerned precisely with neglect of duty, a duty created in a general manner by Congress when it enacted the Federal Aviation Act of 1958 (49 U.S.C. § 1301, et seq.) and thereafter, in a more precise fashion, as a result of the experiences of the F.A.A., by that Agency's promulgation of Order SO 8430.20 C. Had the requirements of this Order been included in the Statute itself, we doubt that the Government would be in a position, leaving aside for the moment the question of causation, to assume its present stance (see page 21 of the Government's Memorandum).

In its Motion, however, the Government takes the position that there is...