In re Reinforced Earth, Co.

• Decision Date: 17 April 1996
• Docket Number: Civil No. 93-1874 (DRD).
• Citation: 925 F. Supp. 906
• Parties: In re REINFORCED EARTH, CO., and others — La Colina and Oasis Gardens Litigation.
• Court: U.S. District Court — District of Puerto Rico

925 F. Supp. 906

In re REINFORCED EARTH, CO., and others — La Colina and Oasis Gardens Litigation.

Civil No. 93-1874 (DRD).

United States District Court, D. Puerto Rico.

April 17, 1996.

Harvey B. Nachman, Nachman, Santiago, Bray, Guillemard & Carrion, Santurce, PR, for Carmelo Lartigue-Henriquez, Myrna Castro-De Lartigue, Conjugal Partnership Lartigue-Castro, Myrta M. Avila, Carlos Rodriguez-Santiago, Elis Ana Gonzalez, C/P Rodriguez-Gonzal, Roger V. Wall, Dulce G. Santiago-Vela, C/P Wall-Santiago, Edgardo N. Bermudez, Miriam Gonzalez-De-Bermudez, C/P Bermudez-Gonzale, Eloy Gomez, Jr., Aida Gomez, Conjugal Partnership Gomez-Gomez, Hector M. Osorio-Yera, Lydia Lartigue-De-Osorio, Conjugal Partnership Osorio-Lartigue, Carmen G. Caldero-Santiago, Oscar Martin-Martin, Conjugal Partnership Martin-Caldero, Gloria Rodriguez-Sanchez, Alfredo J. Bayouth, Lucia Vega-Chavez, C/P Bayouth-Vega.

Eric Perez-Ochoa, Martinez, Odell & Calabria, San Juan, PR, for Fredrick Newman, Carmen Newman, Conjugal Partnership Newman-Newman, Carlos Gonzalez-Aquino, Maria Ines Castro-Ferrer, Conjugal Partnership Gonzalez-Castro, Raul Rios-Mollineda, Mercedes De-Choudens-Vicente, Conjugal Partnership Rios-De-Choudens, Arturo Gigante, Cecil Marques, Conjugal Partnership Gigante-Marques.

OPINION AND ORDER

DOMINGUEZ, District Judge.

Before the court is third party defendant, Geo Consult, Inc.'s "Geo"¹ motion for summary judgment, filed on November 8, 1994, docket 84. On February 2, 1995, defendants/third party plaintiffs Reinforced Earth Company "RECO" and Lexington Insurance Company "Lexington" filed an opposition to Geo's motion, docket 105.

Both Plaintiffs and Defendants in their motions refer to documents (i.e., contracts, letters, performance reports, etc.) outside the pleadings. Because the court shall consider these supplementary materials, the summary judgment standard is both apposite and opportune. See Garita Hotel Ltd. v. Ponce Federal Bank, 958 F.2d 15, 19 (1st Cir.1992).²

A district court may grant summary judgment when the record documents that possess evidentiary force "show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). See Eileen M. McCarthy v. Northwest Airlines, Inc., 56 F.3d 313 (1st Cir.1995), (citing Coyne v. Taber Partners I, 53 F.3d 454 (1st Cir. 1995)). The intricacies and general standards of Rule 56, have been documented by the First Circuit Court in a "cascade of cases"³. "Once a properly documented motion has engaged the gears of Rule 56, the party to whom the motion is directed can shut down the machinery only by showing that a trial worthy issue exists." Eileen McCarthy, 56 F.3d at 315 (citing National Amusements, 43 F.3d at 735). At this crux, we need say no more than that summary judgment will proceed if the record, even when taken in the aspect most favorable to the nonmoving party, fails to yield a trial worthy issue as to some material fact.⁴ Coyne, 53 F.3d at 457.

A material fact is one that might affect the outcome of the suit under the governing law. "The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Medina-Muñoz, 896 F.2d at 8 (emphasis in original), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1985). See also Woods v. Friction Materials, Inc., 30 F.3d 255, 259 (1st Cir.1994). A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.

Hence, in applying these criteria, the Court is to consider that "not every genuine factual conflict necessitates a trial. It is only when a disputed fact has the potential to change the outcome of the suit under the governing law, if found favorably to the nonmovant, that the materiality hurdle is cleared." See Wilfredo Martinez v. Rafael Colon, 54 F.3d 980 (1st Cir.1995), citing United States v. One Parcel of Real Property, 960 F.2d at 204.

Consistent with the summary judgment standard, "we canvass the material facts in a light that flatters, but does not impermissibly distort", the nonmoving party's claims, and indulge all inferences in favor of that party⁵. Because in the instant case there are no genuine issues of material fact, what remains to be decided are questions of law.⁶

I — FACTUAL BACKGROUND

Plaintiffs⁷ have brought this action against Reinforced Earth Corporation "RECO", and Lexington Insurance Company "Lexington", for the claimed damages suffered by the residents of Oasis Gardens Urbanization and Extension La Colina in Guaynabo,⁸ as a result of the alleged defects in the design, manufacture, installation and/or implementation of an earth retention wall⁹ "REW", built by RECO in the La Colina Development, "The Project", in Guaynabo, Puerto Rico. To construct the site and the retention wall for the La Colina development, the developers of La Colina, its engineers, contractors, and subcontractors, purchased the products designed and manufactured by the defendant, RECO. The REW was designed, produced and/or manufactured with products made by RECO. Other parties were contracted to carry out other tasks, including the installation of the retention wall.

On February 10, 1994, docket 68, RECO and Lexington filed a Master Third-Party Complaint. Geo was included as a third party co-defendant for the alleged negligent exercise of its duties, to undertake the proper studies of the condition of the soil and subsoil, as required by the professional standards pertaining to design architects, engineers, and soil examiners. (See docket 68, averments 72, and 73) In the alternative, RECO suggests that if Geo was not negligent, then it is liable to RECO under the theory of implied warranty. The issue to be decided by the court is whether Geo is liable to RECO under the theory of negligence, or under the theory of implied warranty.

II — DISCUSSION

Third Party Defendant, Geo alleges that it can not be held liable to Third Party Plaintiffs under any of the theories alleged in the third party complaint because it performed its services in a diligent workmanlike manner in full compliance with the terms and conditions of the agreement between the parties.¹⁰ Geo contends that because RECO contracted other professionals to prepare plans, and install the various parts of the project, that it performed an "advisory role" solely as to the correctness of the calculation of the plans.¹¹ Hence, Geo insists that it can not be held liable for services performed by other professionals who were contracted to render the design, testing and assembly of the project. Finally, Geo asserts that the alleged correctness of the mathematical computations, which have not been questioned by RECO, attests to its diligent performance, and provides sufficient evidence to warrant dismissal of RECO's claims against Geo. The court agrees.

It remains undisputed that RECO contracted Geo's services for the single purpose of reviewing, sealing and signing the design calculations and construction plans made by RECO in its design of the REW. (See docket 84, exhibits 1 and 3, and docket 105, p. 4) RECO's inclusion of Geo in the third party complaint is predicated on Geo's advisory role as to the mathematical correctness of the calculations of the plans.

In essence, RECO's opposition to the summary judgment request is based on its contention that: "In so far as RECO relied on the advisory opinion rendered by Geo Consult and plaintiff proves that said calculations, were incorrect, Geo will be liable to RECO for any deviation in their performance from that of a professional and workmanlike one." Hence, should plaintiffs prosper in their allegations that RECO was in fact negligent, and said negligence is based upon the advisory role carried out by Geo, then they would be responsible to RECO for said actions. (See docket 105, p. 7)

In our jurisdiction¹² the right to recover damages is governed by Civil Law provisions.¹³ The general source of law governing liability for negligence is Art. 1802 of the Puerto Rico Civil Code, 31 L.P.R.A. § 5141.¹⁴ Hence, we shall veer to Puerto Rico Law and the applicable civil doctrine in solving the remaining pending matters.

A — Was Geo negligent in the performance of its services, and hence, liable to RECO under the theory of negligence?

Negligence has been defined by the Commonwealth Courts as the failure to exercise due diligence to avoid foreseeable risks. See Jimenez v. Peregrina, 112 P.R.Dec. 700 (1982). In the instant case, RECO states that Geo was negligent in the exercise of its duty to provide specific services (Master Third Party Complaint, averment 72), for failing to undertake the proper studies of the conditions of the soil and subsoil at the La Colina project, as required by the professional standards pertaining to design architects, engineers, and soil examiners (Master Third Party Complaint, averment 73). The court disagrees. To recover on a theory of negligence, Third Party Plaintiffs must show that Geo's negligent acts or omissions caused them injuries.¹⁵

Geo reviewed the design calculations and construction plans submitted by RECO, and in so doing Geo informed RECO that it assumed that the soil reports prepared by Soil Tech and the topographic plans provided by Lebron Associates correctly and adequately represented the conditions of the site.¹⁶ The inquiry stops here. Geo was not contracted to prepare plans, install, or assemble any part of the project, but to review, seal, and sign documents submitted by RECO in an advisory manner, which concluded in the determination that the submitted documents were correct. (See docket 84, Exhibits 2 and 3) Once Geo reviewed the documents and found them to be correct, its participation in the project ceased.

Hence,...