Sammartano v. Palmas del Mar Properties, Inc.
Decision Date | 06 October 1998 |
Docket Number | No. 98-1409,98-1409 |
Citation | 161 F.3d 96 |
Parties | Florence SAMMARTANO and Richard Uhl, Plaintiffs, Appellants, v. PALMAS DEL MAR PROPERTIES, INC., Defendant, Appellee. . Heard |
Court | U.S. Court of Appeals — First Circuit |
Gabriel I. Penagarcano for appellants.
David W. Roman, with whom Brown & Ubarri was on brief, for appellee.
Before LYNCH, Circuit Judge, CYR, Senior Circuit Judge, and LIPEZ, Circuit Judge.
Plaintiff Florence Sammartano brought a negligence claim against Palmas del Mar Properties, Inc., the owner of the Puerto Rico resort where she was staying, after she fell while crossing a road from the resort parking lot to the building where her room was located. Co-plaintiff Richard Uhl, her companion, brought a derivative claim for "mental and moral damages." Applying Puerto Rico law, the district court granted the defendant's motion for summary judgment, holding that plaintiffs had not demonstrated that defendant "had the duty to act to avoid the harm" because they had not come forward with any evidence that "the road was under the custody and control of Palmas de[l] Mar" or that "Palmas del Mar [was] responsible for the upkeep" of the road. Finding that plaintiffs waived the only argument raised in their appeal, we affirm.
Plaintiffs argue that even if the district court ruled correctly on the question of whether there was evidence that defendant had custody or control of the road, there is an alternative theory of duty on which they should have been permitted to proceed, a theory that is within the broad parameters of plaintiffs' notice pleading in the case. The alternative theory is that a property owner has a duty to provide safe access to the property and that the owner may therefore be liable for failing to remedy hazardous conditions in areas that are owned and maintained by someone else. For this theory, plaintiffs rely almost exclusively on cases interpreting the law of jurisdictions other than Puerto Rico, pointing to a handful of factually distinguishable Puerto Rico cases only for the general proposition that duty may be dictated by specific circumstances. 1 See Appellant's Brief at 9 .
In its brief, the defendant essentially ignores plaintiffs' alternative theory and continues to insist, as it did before the district court, that plaintiffs' claims were based solely on the theory that defendant exercised custody or control over the road. Defendant also urges us to examine the summary judgment papers submitted to the district court and asserts that plaintiffs "utterly failed ... to present a specific opposition to [the] well-documented motion for summary judgment." At oral argument, defendant more directly 2 stated that plaintiffs waived the alternative theory by not raising it before the district court. We take this waiver issue seriously, because important considerations of equity and judicial efficiency animate our well-established rule that arguments may not be raised for the first time on appeal. See, e.g., United States v. Slade, 980 F.2d 27, 31 (1st Cir.1992) (); McPhail v. Municipality of Culebra, 598 F.2d 603, 607 (1st Cir.1979) ().
The essential first question, then, is whether the trial judge was fairly apprised of the plaintiffs' alternative theory. See Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir.1995) ( ; Slade, 980 F.2d at 31 () ; McCoy v. MIT, 950 F.2d 13, 22 (1st Cir.1991) () . We think that the court was not fairly apprised, and so we do not reach the question of whether plaintiffs' alternative theory is viable on these facts under Puerto Rico law.
Plaintiffs' complaint alleged that defendant had been negligent. See P.R. Laws Ann. tit. 31, § 5141 (). In response to this broad allegation, defendants answered and affirmatively pled, inter alia, that "the area or place where plaintiff fell and injured her wrist was not owned or controlled by the appearing defendant" and that "the alleged injury resulted as a consequence of the exclusive or concurrent negligence of third parties, for which the appearing defendant is not liable." In the face of these affirmative defenses, plaintiffs in their proposed pretrial order repeated the broad claims in the complaint and contended that "[d]efendant[ ][is] liable for the damages suffered ... owing to the unsafe condition in which it maintained the area" where Sammartano fell. Defendant's proposed pretrial order repeated that it neither owned nor maintained the road and so could not be liable.
Defendant then moved for summary judgment on precisely these grounds. 3 Plaintiffs' response did not assert, as they do on appeal, that defendant had a legal duty to provide safe ingress to and egress from its property. Nor did plaintiffs cite to the district court the non-Puerto Rico cases on which they now rely--or, for that matter, any authority at all (plaintiffs did cross-reference the court to an unadorned list of general Puerto Rico tort cases contained in their proposed pretrial order, none of which set forth plaintiffs' current argument). Although in hindsight a few of plaintiffs' assertions about why the road was allegedly unsafe may seem to support a safe access...
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