Ortiz v. Zambrana

• Decision Date: 12 September 2011
• Docket Number: Civil No. 09–2261 (JAF).
• Citation: 2012 A.M.C. 712,809 F.Supp.2d 1
• Parties: Francisco Perez ORTIZ, et al., Plaintiffs, v. Alberic Colon ZAMBRANA, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

2012 A.M.C. 712

809 F.Supp.2d 1

Francisco Perez ORTIZ, et al., Plaintiffs,

v.Alberic Colon ZAMBRANA, et al., Defendants.

Civil No. 09–2261 (JAF).

United States District Court, D. Puerto Rico.

Sept. 12, 2011.

Maria Eugenia Villares–Seneriz, Vanessa Saxton–Arroyo, Toledo & Toledo Law Office, San Juan, PR, for Plaintiffs.

Ian P. Carvajal–Zarabozo, Luis N. Saldana–Roman, Saldana, Carvajal & Velez–Rive, PSC., San Juan, PR, for Defendants.

OPINION AND ORDER

JOSÉ ANTONIO FUSTÉ, District Judge.

Plaintiffs, Francisco Pérez–Ortiz (Ortiz); Maria Lancara–Maldonado (Maldonado); ¹ Maldonado's children, Efraín O. Cornier–Lancara (Efraín) and Blanca Cornier–Lancara; Ortiz's children, Namir Pérez del Valle, Ayleen Pérez del Valle,² and Lucía Ortiz del Valle; bring this maritime tort action against defendants, Alberic Colón–Zambrana (Zambrana); Zambrana's wife, Celeste Solís Aguiló; their conjugal partnership; and unknown insurance companies. (Docket No. 1.) This court has admiralty and maritime jurisdiction under 28 U.S.C. § 1333.³ Defendants move for partial summary judgment under Federal Rule of Civil Procedure 56. (Docket No. 53.) Plaintiffs oppose (Docket No. 59), and Defendants respond (Docket No. 64).

I.Factual Synopsis

Unless otherwise noted, we derive the following factual summary from the complaint and the statements of facts submitted by the parties in their summary judgment and opposition motions. (Docket Nos. 1; 53; 54; 55; 59.)

On July 24, 2009, while snorkeling, Plaintiffs Ortiz and Efraín were injured when hit by defendant Zambrana's boat. (Docket No. 1 at 8.) The accident occurred in the territorial waters of Puerto Rico, which are navigable waters of the United States, near Dakiti Beach off the island of Culebra. (Docket No. 1 at 7.)

Plaintiffs Ortiz and Efraín were snorkeling with a larger group that included Plaintiff Juan Carlos Cornier–Lancara, as well as Pedro Quiles (Ortiz's nephew), José Gabriel Santos–Casanova, John Johnson, and Luis Méndez. (Docket No. 1 at 7.) This group of men had been snorkeling for approximately two hours before the accident happened. ( Id.) Earlier that morning, the group of divers had separated from a larger group of family and friends. (Docket No. 1 at 6.) This other group, which included Plaintiff María Lancara–Maldonado, remained on boats anchored on Dakiti Beach. ( Id.) The divers planned to return to the boats later in the day, after doing some harpoon fishing and snorkeling in the nearby reefs. (Docket No. 1 at 7.)

At around noon that day, defendant's boat, the Tiara, struck Plaintiffs Ortiz and Efraín. (Docket No. 1 at 8.) The impact of the boat's propeller caused serious injuries to Ortiz. ( Id.) At the hospital after the accident, Ortiz's left leg was amputated above the knee. (Docket No. 1 at 13.) Ortiz also required fourteen pints of blood transfusion and ten skin staples on his right leg. ( Id.) After undergoing surgery for his injuries, Ortiz remained in a coma for four days. (Docket No. 1 at 14.) Ortiz also required a second surgery to finish the amputation, as well as several therapy sessions in a hyper-baric chamber to treat his wounds. ( Id.) He suffered from “phantom pain” in the place his injured leg used to be. (Docket No. 1 at 13.)

Today, as a result of the injury, Ortiz continues to suffer emotional distress, anxiety, pain, and suffering. (Docket No. 1 at 15.) He has insomnia and nightmares and was treated for depression. ( Id.) The injury has prevented Ortiz from being able to work at his previous job as an independent contractor. ( Id.)

In the collision, Efraín also suffered minor bruises and abrasions from the propeller, which collided with his swimming fin and broke it in two. (Docket No. 1 at 13.)

Plaintiffs allege that at the time of the accident, defendant was operating his boat in a negligent manner. (Docket No. 1 at 18.) Plaintiffs further allege defendant denied them assistance after the accident. (Docket No. 1 at 19.) Defendants counter that Plaintiffs failed to comply with local regulations requiring a diver's flag. (Docket No. 52 at 2.)

Plaintiffs seek $15,100,000 to compensate Ortiz for his physical and emotional injuries, past and future medical expenses, loss of income, lost future earnings, and hedonic damages. They also seek $2,100,000 for the injuries, medical expenses and diminished earning capacity of Plaintiff Efraín. María Lancara–Maldonado, referred to in the complaint as Ortiz's “common-law wife,” seeks $1,550,000 for emotional distress, medical expenses for psychiatric treatment, and diminished earning capacity. Her children, Blanca Cornier–Lancara and Juan Carlos Cornier–Lancara, seek $500,000 each for emotional distress caused by the accident. Namir Pérez del Valle, Ayleen Pérez del Valle, and Lucía Ortiz–Tirado, each children of Francisco Pérez–Ortiz, seek $500,000 for their emotional distress. Ayleen Pérez del Valle seeks an additional $250,000 for medical expenses associated with mental health services she required after the accident.

Defendants move for partial summary judgment. (Docket No. 53.) Defendants seek dismissal of the emotional distress claim raised by Plaintiffs María Lancara–Maldonado, Blanca Cornier–Lancara, Namir Pérez del Valle, Ayleen Pérez del Valle, and Lucía Ortiz–Tirado. ( Id.) Defendants argue that these Plaintiffs have failed to state a claim upon which relief can be granted under federal maritime law. ( Id.) Plaintiff opposes (Docket No. 59), and Defendants respond (Docket No. 64).

II.Summary Judgment Under Rule 56

We must grant a motion for summary judgment “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A factual dispute is “genuine” if it could be resolved in favor of either party and “material” if it potentially affects the outcome of the case. Calero–Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir.2004).

The movant carries the burden of establishing that there is no genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant may satisfy this burden by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, ... or other materials.” Fed.R.Civ.P. 56(c)(1)(A). Furthermore, to establish the absence of a genuine dispute of material fact, the movant need not produce evidence but may instead point to a lack of evidence supporting the nonmovant's case. See Fed.R.Civ.P. 56(c)(1)(B); see also Celotex, 477 U.S. at 325, 106 S.Ct. 2548. “Once the moving party has made a preliminary showing that no genuine [dispute] of material fact exists, the nonmovant must produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy [dispute].” Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir.2006) (internal quotation marks omitted); see also Fed.R.Civ.P. 56(c)(1).

In evaluating a motion for summary judgment, we must view the record in the light most favorable to the nonmovant. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150–51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). “The court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3).

III.Analysis

Defendants move for partial summary judgment. (Docket No. 53.) Defendants maintain that under federal maritime law, negligent infliction of emotional distress is the only cognizable claim presented by Plaintiffs María Lancara–Maldonado, Blanca Cornier–Lancara, Namir Pérez del Valle, Ayleen Pérez del Valle, and Lucía Ortiz–Tirado. (Docket No. 54.) Because these Plaintiffs were not present at the scene of the accident, defendants argue, these Plaintiffs cannot recover for negligent infliction of emotional distress. ( Id.) Plaintiffs dispute defendants' characterization of federal maritime law. (Docket No. 59.) Plaintiffs further argue that even if their claim is barred by federal maritime law, they should be allowed to recover under Article 1802 of Puerto Rico's Civil Code, 31 L.P.R.A. § 5141. ( Id.) For the reasons described below, we find for defendants.

A. Negligent Infliction of Emotional Distress

This case is a maritime tort within the definition provided by the United States Court of Appeals for the First Circuit, Medina v. Perez, 733 F.2d 170, 171 (1st Cir.1984). It is well-settled that when admiralty jurisdiction is invoked, substantive maritime law applies. East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986). This principle serves to promote uniformity in admiralty actions. See Tucker v. Fearn, 333 F.3d 1216, 1224 (11th Cir.2003).

While the First Circuit has not expressly decided whether negligent infliction of emotional distress is a cause of action in federal maritime law, Ellenwood v. Exxon Shipping Co., 984 F.2d 1270 (1st Cir.1993), other circuits have held that it is, see, e.g., Chan v. Society Expeditions, Inc., 39 F.3d 1398 (9th Cir.1994). In Chan, the Ninth Circuit held that “claims for emotional distress are cognizable under admiralty law,” id. at 1409, citing Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 550, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). We have also held that negligent infliction of emotional distress is a cognizable claim under federal maritime law. Peemoller Sultan v. Pleasure Craft Contender, 139 F.Supp.2d 230 (D.P.R.2001); Kunkel v. Motor Sport, Inc., 349 F.Supp.2d 198 (D.P.R.2004). Because negligent infliction of emotional distress is a cognizable claim under admiralty law, we must apply the rules of admiralty. Id.

In Peemoller, we announced the three standards governing liability for negligent infliction of emotional distress: (1) the “physical injury or impact” test; (2) the “zone of danger” standard; and ...