Federal Insurance Company v. Bonilla Colon

• Decision Date: 02 April 1968
• Docket Number: 6868.,No. 6867,6867
• Citation: 392 F.2d 662
• Parties: FEDERAL INSURANCE COMPANY, Defendant, Appellant, v. Ada Ligia BONILLA COLON, etc., et al., Plaintiffs, Appellees. PAN AMERICAN WORLD AIRWAYS, INC., Defendant, Appellant, v. Ada Ligio BONILLA COLON, etc., et al., Plaintiffs, Appellees.
• Court: U.S. Court of Appeals — First Circuit

392 F.2d 662 (1968)

FEDERAL INSURANCE COMPANY, Defendant, Appellant, v. Ada Ligia BONILLA COLON, etc., et al., Plaintiffs, Appellees.

PAN AMERICAN WORLD AIRWAYS, INC., Defendant, Appellant, v. Ada Ligio BONILLA COLON, etc., et al., Plaintiffs, Appellees.

Nos. 6867, 6868.

United States Court of Appeals First Circuit.

Heard February 5, 1968.

Decided April 2, 1968.

Rehearing Denied May 14, 1968.

Francisco Ponsa Feliu, San Juan, P. R., for appellant, Federal Ins. Co.

A. Santiago Villalonga, San Juan, P. R., with whom Hartzell, Fernandez & Novas, San Juan, P. R., was on brief, for appellant, Pan American World Airways, Inc.

Harvey B. Nachman, San Juan, P. R., with whom Gustavo A. Gelpi, Santurce, P. R., and Nachman, Feldstein, Laffitte & Smith, San Juan, P. R., were on brief, for appellees.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

Rehearing Denied May 14, 1968 in No. 6868.

McENTEE, Circuit Judge.

These are diversity suits for wrongful death resulting from a fall on a stairway at the International Airport in Puerto Rico on July 11, 1963. Plaintiffs, the children and grandchildren of the decedent, obtained substantial jury verdicts against Federal Insurance Company, the insurer of the Puerto Rico Port Authority, and also against Pan American Airways. Both defendants appealed. The deceased, Nicolasa Colon Vda de Bonilla, was a woman seventy-eight years of age but apparently active and vigorous considering her age.

After showing her ticket and going through the entrance gate, decedent was handed a shoe box by her granddaughter who, with other relatives, had accompanied her to the airport. Shortly thereafter, she descended the stairway to board the plane, keeping to the far left of the stairway to avail herself of the railing. As she descended she had the shoe box in her right hand and was carrying a handbag in her left hand. It is not clear whether the fact that both hands were otherwise occupied prevented the decedent from grasping the rail firmly but at any rate she held on to it to some extent. A few steps from the bottom Mrs. Bonilla fell to the pavement thereby incurring injuries which caused her death.

Distinct theories of liability are urged against the defendants. Against Federal Insurance Company it is alleged that its insured constructed the stairway in violation of the building code of Puerto Rico. In support of this there was testimony that some of the risers on the stairway differed in height by an eighth of an inch. Against Pan American it is alleged that it breached its duty of care as a public carrier by failing to assist decedent with her packages, thereby in effect denying her the use of the railing and also by failing to warn the decedent of the dangers to be encountered in using this stairway.

The district court instructed the jury that a finding that the Port Authority did not observe the building regulations in constructing the stairway would be conclusive of the liability of the insurer. Defendant, Federal Insurance Company, argues, however, and we cannot but agree, that these regulations have no application to the structure in question and that this instruction to the jury was error.

Section 43-3 of the regulations provides that whereas new buildings constructed after the effective date must conform to its provisions, existing buildings need not unless they are enlarged, altered, or reconstructed after the effective date. Furthermore, section 43-21 defines an existing building as "a building erected prior to the effective date of this subchapter, or one for which a building permit has been issued by the Permit Official prior to the effective date of this subchapter, which permit has not yet expired."

Despite the fact that these regulations did not become effective until September 12, 1954, the district court refused to admit into evidence two documents, one dated March 18, 1953, showing the approval for construction of the passenger terminal building of the International Airport, and the other a permit for construction dated March 25, 1953. We think that this ruling of the district court was also erroneous and resulted in substantial prejudice to defendant, Federal Insurance Company, because the verdict against it was based largely on the assumption that violation of the regulations would be negligence per se.

The district court appears to have reasoned that the structure in this case was not an existing building within section 43-21 because this definition must be read in light of section 43-3(c) which contemplates a structure to be enlarged, altered or reconstructed. This interpretation seems strained even within section 43-3, since it leads to the paradoxical result that a building is not really "existing" unless it is about to be torn down. Moreover it becomes entirely untenable when analyzed in light of section 43-31, which reads in part as follows:

"(e) No changes will be required in the plans, construction, or designated use of buildings or structures for which a lawful permit has been issued and is valid at the effective date of this subchapter, provided that such construction is completed within one year after the effective date of this subchapter."

See Torres v. Metropolitan School of Commerce, Supreme Court of Puerto Rico, October 6, 1964, where it is suggested that it is up to the plaintiff to introduce evidence that the building was constructed after the effective date of the regulations.

The question remains whether we should order judgment for the defendants on their motions for directed verdicts, or...