Baum-Holland et al v. El Conquistador Partnership L.P., SE , et al

2018 | Cited 0 times | D. Puerto Rico | September 30, 2018




CIVIL NO. 14-1860 (DRD)

OPINION AND ORDER Pending before the Court is co-defendants Hilton El Con Management LLC, Hilton El Con Operator LLC, El Conquistador Partnership L.P., S.E. d/b/a El Conquistador Motion for Summary Judgment (Dkt. No. 127) 1

. Plaintiff filed its respective opposition to said motion. (Dkt. No. 138). For the reasons stated herein, the Court GRANTS for summary judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND The instant case arises from the death of Dr. George Holland, which happened on January 1, 2013 while vacationing in Puerto Rico. Dr. Holland arrived to Puerto Rico for a vacation with family and friends on or around December 26, 2012 for his mother-in-

1 El Conquistador submitted a Supporting Statement of Material Facts. See Dkt. No. 127-1.


at El Conquistador, located in Fajardo, Puerto Rico.

On January 1, 2013, Dr. Holland, his wife Dr. Laura Baum-Holland, and his three children took E 2

with other members of the party. See Third Amended Complaint, Dkt. No. 70, ¶ 20. Upon their arrival to Palomino, Dr. Holland and other party members rented snorkeling equipment from La Casa del Mar. Id. at ¶ 21. The party proceeded to snorkel towards Palominito. 3

About half way towards Palominito, Dr. Holland became unresponsive, prom Kaye and Lawrence Evan Jassin to approach Dr. Holland. After several attempts to save Dr. Holland , including a transfer to a hospital nearby, was officially pronounced dead. -Holland, widow of deceased Dr. Holland, daughters Sarah and Emily Holland 4

and, son Joseph Holland filed the instant diversity claim against El Conquistador for damages and eventual death of Dr. Holland. El Conquistador is seeking summary judgment (Dkt. No. 127), alleging that the vast majority of the critical allegations contained in p fail in truthfulness and thus the summary judgment is warranted dismissing all claims

premised therein. El Conquistador avers that the remainder of the allegations concern

2 (26 September 2018). 3 Palominitos Island (Isla Palominitos) is a small cay about 4 miles east of Fajardo. (26 September 2018. 4 Although when the complaint was initially filed Sara and Emily Holland were minors, Sarah and Emily reached the majority of age on August 29, 2016 and November 9, 2013, respectively.

omissions for which there was no duty to act, and consequently summary judgment is warranted dismissing such claims. See Dkt. No. 127, p. 19. El Conquistador is further requesting summary judgment in favor of co-defendants, Hilton El Con Management, LLC and Hilton El Con Operator, LLC, as they do not own or operate El Conquistador. They are also seeking summary judgment in favor of LXR Luxury Resorts, which they allege is not an actual entity. Plaintiffs have filed their opposition to said motions (Dkt. No. 138). The Court will focus on allegations against El Conquistador moving hereafter. Proper analysis of require careful scrutiny of the underlying legal framework.

II. FACTUAL FINDINGS The following factual undisputed facts, and supported documentation. Upon careful review of the record, the

Court finds the following facts are undisputed:

1. This action arises from an incident that took place on January 1, 2013, at or off the coast of Palomino Island in Puerto Rico. See Third Amended Complaint, Dkt. No. 70 ¶¶ 11, 40.

2. The third amended complaint alleges plaintiffs visited Palomino Island as guests of El Conquistador Resort, where they were staying since on or about December 26, 2012. Id. at ¶¶ 12-20.

3. Since several years before December of 2012 and until today, El Conquistador has been owned and operated by El Conquistador Partnership LP SE. See

Dkt. No. 127-2, Exhibit A, Unsworn Declaration Under Penalty of Perjury by Noel Vera- Ramírez. ¶ 2.

4. As it pertains to Hilton El Con Management LLC and Hilton El Con and/or Hilton El Con Operator, L.L.C., are limited liability companies incorporated in

the state of Delaware, authorized to do business in Puerto Rico, with principal offices in Beverly Hills, California, and in 1000 El Conquistador Ave., Las Croabas, Fajardo, Puerto Rico. Upon information and belief, these co-defendants manage and/operate El See Dkt. No. 70 ¶ 6.

5. Since at least as early as December of 2012 and to this date, Hilton El Con Management LLC has not owned or operated the El Conquistador Resort, nor has it provided any service to guests therein. See Dkt. No. 127-2 ¶ 3.

6. been authorized to do business in Puerto Rico since December 15, 2008. See Dkt. Nos. 138- 5 and 138-6.

7. Said entities filed annual reports with the Department of State of Puerto Rico, at least until 2013, which is the year when the incidents alleged in the complaint took place. See Dkt. No. 138-6 and 138-7.

8. Since at least as early as December of 2012 and to this date, Hilton El Con Operator LLC has not owned or operated the El Conquistador Resort, nor has said party provided any service to guests therein. Id. ¶ 4.

9. As it pertains to LXR Luxury Resorts, the third amended complaint alleges, , Inc. is a corporation incorporated in the state of Delaware, with principal offices in 501 East Camino Real, Boca Raton, Florida, that upon information and belief owns and/or operates El Conquistador. See Dkt. No. 70, ¶ 7.

10. LXR Luxury Resorts is not an entity, but rather, is a trademark owned by LXR Holdco, Inc. that El Conquistador Partnership LP SE used under license. See Dkt. No. 127-2, ¶ 5.

11. Since at least as early as December of 2012 and to this date, there has been no entity named LXR Luxury Resorts that has owned or operated the El Conquistador Resort, or has provided any service to guests therein. Id., ¶ 6.

12. Zurich American Insurance Company See Dkt. No. 79, ¶


13. On January 1, 2013, Dr. Holland rented snorkeling gear from concessionaire, La Casa del Mar for him and his son, Joseph, as well as for some other members of his party. See Dkt. No. 138-13.

14. Pursuant to the Concession Agreement, La Casa del Mar is a concessionaire to El Conquistador that rents snorkel equipment to the hotel guests that visit Palomino Island. See Concession Agreement by and Between El Conquistador Partnership L.P., S.E. d/b/a El Conquistador Golf Resort & Casino and La Casa del Mar, Inc. d/b/a La Casa del Mar Dive Center, Dkt. No. 142-4.

15. See Dkt. No. 138-13.

16. Dr. Holland signed the La Casa del Mar Snorkeling Liability and Release Policy. See Dkt. No. 58, Motion Informing Stipulation of Fact.

17. When Dr. Holland rented the snorkel equipment, he did not request an available floatation device from the equipment rented to the guests by the concessionaire, La Casa del Mar. See Dkt. No. 70 ¶ 21.

18. Dr. Holland did not rent any snorkeling belts. Id. 19. The La Casa del Mar rental concession stand had flotation belts available for rental to snorkelers for a charge of $5.00, and which were hanging behind the counter visible to the public. Id. at p. 27, l. 3-23, p. 60, l. 4-17.

20. Lyzette Morgan Guzmán, La Casa del M snorkeling equipment during the date of the incident, attested that people do not rent the

belts often. See Dkt. No. 127-6, p. 36 l. 6-8.

21. According to Ms. Morgan, belts were typically rented for kids. Id. p. 42 l. 20-22.

22. Ms. Morgan further testified that there were 12-15 belts available to rent on the date of loss. Id. p. 58, l. 5-10.

23. According to the equipment rental log contained in the release, 2 (belts) were rented after Dr. Holland rented the equipment for his party. See Exhibit A,

Dkt. No. 58-2; see also Dkt. No. 127-6, p. 27 l. 3-23.

24. Ms. Morgan, would routinely advice guests that the best snorkeling area was between Palomino and Palominito. See Dkt. No. 127-6, p. 86, l. 16-19.

25. According to Ms. Morgan, she personnel that the swim from Palomino to Palominito could take between 30 to 45

minutes and that was what she would routinely advice guests when asked. See Ms. , Dkt. No. 141-9, ¶ 28. 5

26. Plaintiffs retained an expert in oceanography, Dr. Miguel Canals Silander, who has See Dr. Dkt. No. 127-3, p. 8 l. 18 to p. 9, l. 1.

27. Dr. Canals was hired to reconstruct of the oceanographic conditions at and take a picture, or a reconstruction of what was happening, in terms of waves, the winds, and the currents, at the time of the incident by plaintiffs. Id. at p. 29, l. 2-11.

28. While Dr. Holland was snorkeling, the wind speed in the area would have been between 5 and 12 miles per hour, which are typical trade wind conditions for the area in Puerto Rico. Id. at p. 51, l. 6-7; p. 76 l. 23 to p. 77, l. 2.

29. In dropping. Id. at p. 52, l. 10-15.

5 Palomino Water Sports is not a defendant in the instant case.

30. The National Weather Service issued a coastal hazard notification warning on January 1, 2013 indicating large breaking waves and frequent rip currents resulting See Dkt. No. 141-1.

31. - northwest swells in breaking waves of 10 to 14 feet and locally higher. Id.

32. Dr. Canals stated there was a weather bulletin that estimated the height of the breaking waves between 10 to 14 feet, but this bulletin is for a completely different location than the area Dr. Canals analyzed between Palomino and Palominito. See Dkt. No. 127-3, p. 108, l. 10-25.

33. On January 1, 2013, at the time and the place of the incident, the conditions that Dr. Canals estimated were drastically different from what was described in the weather bulletin as these facts occurred in the Southern side of Palomino in route to Palominito. Id. at p. 109, l. 9-20.

34. The reason the oceanographic conditions in the bulletin are different in the exposed Atlantic to the north than those in the Palomino-Palominito area is because there is a barrier of islands and reefs to the north of Palomino, and the waves interact with the local bathymetry of Palomino and Palominito, which is a sheltered environment, and which includes a reef area directly around the north and eastern coast of Palomino Island that further reduces wave energy. Id. at p. 61 l. 1 to p. 63, l. 2.

35. In sum, while the weather bulletin estimated the height of the breaking waves between 10 to 14 feet in the exposed Atlantic, Dr. Canals estimated that the waves

between Palomino and Palominito were maybe one to two foot waves. Id. at p. 60, l. 11- 21; 84, l. 11-19.

36. This is the result of waves approaching the barrier of islands and reefs Id. at p. 61, l 16 to p. 62,

l. 6.

37. The tidal change on that day over a 12-hour period was approximately 1 foot, with 1 foot to two feet being typical for the northeastern coast of Puerto Rico. Id. at p. 53 l. 18-21, p. 56 l. 22 to p. 57, l. 3.

38. The westward current in the area between Palomino and Palominito was between 0.3 to 0.45 or between 0.6 and 0.9 knots. Id. at p. 64, l. 8-12.

39. The maximum 0.9 knots current is a longshore current, which is a current that runs parallel with the coast. Id. at p. 105 1 to p. 106, l. 25. The current was not a rip current. Id. at p. 106, l. 23-24.

40. That same day, Dr. Holland began swimming towards a small island (Palominito) located approximately ½ a kilometer away from Palomino. See Dkt. No. 70, ¶ 27.

41. Dr. Holland was about half way to Palominito when the incident occurred. See Dkt. No. 70 ¶ 28; see also Dkt. No. 127-11 p. 77. 6

6 Exhibit No. 7 wherein Mr. Jassin Palomino and the adjacent island. According to Mr. Jassin, point 2 was the route they took from Palomino to Palominito, and point 3 was the approximate location where Mr. Holland became unresponsive.

42. John Rosado, the owner of Palomino Water Sports, another of El , also testified that on the day and time of the incidents there were strong currents. See Deposition of Mr. Rosado, Dkt. No. 141-7, p. 30 l. 4-6, p. 32 l. 13- 25, p. 99 l. 12-25.

43. As they were trying to rescue Dr. Holland, Mr. Rosado described the current as follows:

Edward, to see what was the situation. Both of them they do have the lifeguard license, so they just jump in. Uhhh, they tried to pull him over on the jet ski, with the current, and it was really hard, because they would keep Id., p. 36, l. 16-22. 44. See Dkt. No. 140, Deposition of Dr. Richard Baum, p. 23, l. 4-8.

45. On the day of the incident, Dr. Richard Baum heard that Dr. Holland was in trouble, so he went and asked an employee with a Jet Ski to take him where the problem with Dr. Holland was occurring. Id. p. 26, l. 14-17, p. 27, l. 8-16, p. 28, l. 10-16.

46. The employee went with Dr. Richard Baum, who was on the back of the Jet Ski, and the employee indicated that the person in trouble was on a sailboat. Id. p. 29, l. 1-8 and 19-25.

47. Once the employee and Dr. Baum arrived near the sailboat, they saw his family and co- Id. p. 30, l. 1-14.

48. to Dr. Holland. Id. p. 32, l. 9-12 and p. 32, l. 22 to p. 39, l. 11-17.

49. respiration until he was brought to shore and that Dr. Holland lost his respiration and

pulse on shore. Id. p. 43, l. 14-18, p. 44, l. 11-13.

50. Mr. Jassin, another observing witness, stated that while the party was snorkeling, they agreed to stay together and were virtually together the whole time. See , Dkt. No. 127-10 p. 68 l. 23-25.

51. Holland was looking straight towards Palominito, was calm, not trashing, and was

treading water. 7

See Mr Dkt. No. 127-11, p. 25 l. 9 to p. 26, l. 16; p. 30 l. 6-10.

52. According Mrs. Jassin, during the expedition, facing Palominito, Dr. Holland was to her left, about 12 feet away from her. Id. p. 17 l. 17 to p. 24 l. 9.

53. Mr. and Mrs. Jassin approached Dr. Holland out of concern as Dr. Holland had become unresponsive. Id. at p. 25, l. 9-22; see also Dkt. No. 125-10, p. 92, l. 3-22.

54. Shortly after Dr. Holland became unresponsive, Mr. and Mrs. Jassin pulled and held him up. See Dkt. No. 127-11, p. 27, l. 18-23.

7 To tread water is to your legs and arms up and down us/dictionary/english/tread-water. (26 September 2018).

55. Mr. and Mrs. Jassin testified that the day was partly cloudy and breezy, that the water was choppy and not smooth and that there were currents (Dkt. No. 127-11, p. 69, l. 22-24 to p. 70, l. 1-7, and Dkt. No. 127-10, p. 28, l. 14-23, p. 41, l. 14-17) that made them shift to the right (Id. p. 43, l. 13-18), thus they had to keep looking at Palominito to keep track because the current was moving them to the side (Id. p. 44, l. 1-18) and that it got harder as they went along (Id. p. 60, l. 2).

56. Mr. Jassin also testified that before Dr. Holland was lifted from the water he drifted from point 3 to point 4 (in the photograph, Dkt. 127-11, p. 77) 8

because of the current (Dkt. No. 125, p. 96, l. 10-24 and p. 97, l. 1-2) and that after Dr. Holland was placed aboard the catamaran he had to struggle and drifted away from the catamaran because of the choppy water and the current. Id. p. 144, l. 22-23, p. 145, l. 1-24, p. 147, l. 1-24.

57. Mr. Jassin testified that he did not see any flag in Palomino warning as to the sea conditions on January 1. 2013. Id. p. 137, l. 23-24 to p. 138, l. 1-3.

58. However, according to Mrs. Jassin, there was no undertow pulling the swimmers down, no waves tossing people around, and no one was getting tossed in the waves or getting thrown under water. See Dkt. No. 127-11, p. 28, l. 23 to p. 29, l. 10.

59. Mrs. Jassin testified under oath that she has lifeguard, CPR and AED training. Id. p. 4 l. 25 to p. 8 l. 8.

60. Prior to noticing Dr. Holland stopped treading water and looking at Palominito Island, there was nothing about the water conditions that merited the

8 Enclosed herein as Exhibit I to orient the reader of this opinion.

attention of Mrs. Jassin or the party, including two (2) young boys, turning back to shore. Id. at p. 55, l. 13 to p. 56, l. 2.

61. After becoming unresponsive, Dr. Holland later began foaming at the mouth. Id. at p. 27, l. 15-17; see also 94, l. 15-20.

62. Between the times Mrs. Jassin first observed Dr. Holland, vertical treading water staring at Palominito, until the time he started foaming at the mouth, his head was kept above water. Id. at p. 33, l. 15 to p. 34, l. 7.

63. After Dr. Holland was brought to shore, Dr. John Ruge, a neurosurgeon of 27 years of experience, saw a nurse or some other person tending to him, walked over to Dr. Holland and continued providing CPR. See Dkt. No. 127-8, p. 4, l. 11 to p. 7, l. 3.

64. condition and found that he was dead, totally cyanotic, blue. He was also pulseless and

breathless. Id., p. 6, l. 19 to p. 7 l. 13.

65. There was a female nurse at shore assisting Dr. Holland, together with Dr. provided CPR with chest compressions and mouth-to-mouth respiration to Dr. Holland.

See Dkt. No. 144-1, p. 13, l. 5, p. 18, l. 11-12, p. 19, l. 13-17, p. 30, l. 20-22, p. 31, l. 22.

66. An AED was brought to the scene, which Dr. Ruge applied following the AED instructions. See Dkt. No. 127-8, p. 7, l. 21 to p. 8, l. 22.

67. While Dr. Armacost administered CPR to Dr. Holland, he expelled liquid and some kind of chunk content in various instances, in one of them, almost a liter. Id. p. 33 l. 24 to p. 36 l. 7.

68. Once Mr. Holland was brought to shore, the scene was chaotic and no one from the hotel was in charge, so Dr. Holland had to receive assistance and CPR from other hotel guests. Id., p. 18 l. 19 to p. 19 l. 7, p. 37 l. 9 to p. 38 l. 18.

69. The defibrillator or AED was brought by a hotel staff member, within ten (10) minutes. Id., p. 33, l. 16-18.

70. Eventually Dr. Holland was loaded on a utility beach vehicle and transported onto a police boat, this approximately 35 to 40 minutes after he arrived to shore. Id. p. 32 l. 15 to p. 33 l. 15.

71. Once at the hotel, Dr. Holland was transported by ambulance to a hospital where he was officially pronounced dead. Id. at ¶ 40.

72. Plaintiffs retained Alberto Marti Ruiz, a dive center and water sports concession operator. See Mr. -20-2016; Dkt. No. 127-4, p. 7, l. 4 to p. 8, l. 11.

73. Mr. Marti, is a certified scuba diver. He owns Scuba Dogs, a concession located in Escambrón Beach, San Juan, that among other things, rents out snorkeling gear. Id. at p. 7, l. 3 to p. 8, l. 11; p. 53, l. 15 to p. 56, l. 10.

74. Id. at p. 64.1, l. 11-13

75. Mr. Marti has never made float vests mandatory for customers renting snorkeling equipment. Id., p. 64, l. 17-19.

76. Mr. Marti confirmed there was no rule, law or regulation requiring the use of floatation devices on January 1, 2013. Id. at p. 48, l. 2-7.

77. Mr. Marti further confirmed floatation devices were optional for the customers renting from his snorkel concession stand in January 1, 2013. Id. at p. 48, l. 7- 19.

78. Mr. Marti has never made float vests mandatory for customers renting snorkeling equipment. Id. at l. 17-19.

79. At the time of the incident, there was no rule or regulation that required a snorkeling rental business to provide snorkeling vests to customers. Id. at p. 64, l. 23 to 65, l. 1.

80. When renting a package of snorkeling gear, the snorkeling vest is optional and many times people do not need it. It is a personal preference of the customer. Id. at p. 67, l. 4-14.

81. There is no rule, law, regulation or standard that requires a snorkeling equipment rental concession to provide an inflatable vest or life jacket to snorkelers. Id. at p. 55, l. 17 to p. 58, l. 1.

82. There is no rule, law, regulation or standard that requires a snorkeling equipment rental concession to provide a rescue tube or board as added floatation device to assist divers. Id. at p. 55, l. 17 to p. 58, l. 20.

83. There is no rule, law, regulation or standard that requires a snorkeling 9

to renters of snorkeling equipment. Id.

84. There is no rule, law, regulation or standard that requires a snorkeling equipment rental concession to provide a reflecting mirror or a whistle to alert authorities in the event of distress. Id.

85. Mr. Marti understands that currents of 1.5 to 2 knots are difficult for somebody to safely enjoy snorkeling. See Id. p. 127, l. 10-17.

86. As stated in paragraph 21, Dr. Canals was hired to perform a reconstruction 1, 2013, to provide a picture, or a reconstruction of what was happening, in terms of

waves, the winds, and the currents, at the time of the incident. See Dkt. No. 127-3, p. 29, l. 2-11.

87. Dr. Canals is of the opinion that on January 1, 2013, Dr. Holland experienced currents of .6 to .9 knots at the site of the accident. Id. at p. 64, l. 8-22; pp. 89- 90, l. 22-13.

88. For over eight years, Edward Valentín Lugo has worked as a beach attendant at Palomino Island. See Deposition, Dkt. No. 127-7, p. 9 24 to p. 10, l. 7.

9 A bright color device that is used to get attention if lost at sea or when an accident happens while at sea. See dsmb. (26 September 2018).

89. Prior to working at Palomino, Mr. Valentín worked in search and rescue with the State Emergency Management, which provided him with specialized training in life rescue. Id. at p. 8, l. 24 to p. 9, l. 16.

90. Mr. Valentín has been Red Cross certified lifeguard since at least 2012, which includes training in aquatic rescue and CPR. Id. at p. 7, l. 24 to p. 8, l. 5.

91. El Conquistador is who set up the classes with the Red Cross. Id. at p. 8, l. 6-13.

92. Dr. Francisco Cortés Rodríguez is a forensic pathologist who performed an autopsy on Dr. Holland on January 2013. See Dkt. No. 268-1, p. 5, l. 15-20, p. 8, l. 13-18; Dkt. No. 141-3.

93. was: (1) aspiration of water in the sphenoid; (2) pulmonary edema; (3)

cardiomegaly, 560 grams; (4) hepatomegaly, 3,080 grams; splenomegaly, 420 grams; (5) generalized cerebral edema and visceral congestion and; abrasions on the face. See Dkt. No. 141-3, p. 4.

94. drowning with a contributing factor being an arteriosclerotic coronary disease. Id.

95. Id. 96. During his deposition, Dr. Cortés explained that a death by drowning, you have to eliminate other causes of death. You can drown in six inches of water; you can drown in an ocean. Just the mere presence of water in the lungs is not sufficient to diagnose death by drowning. If you find water in the sphenoid sinus, then you have a

good idea that this person drowned or at least that he aspirated water. See Deposition, Dkt. No. 268-1, p. 16, l. 21-25, p. 17, l. 8-11.

97. hypertension that was not being treated. Id. p. 30, l. 15-25.

98. According to Dr. Cortés, Dr. Holland had an enlarged heart weighing 560 grams because of his untreated hypertension. Id. p. 60, l. 8-13.

99. normal heart, and he also had thickened blood ventricle. Id. p. 66, l. 20-21.

100. Dr. Cortés further found that Dr. Holland suffered from slight atherosclerosis. Id. p. 63, l. 7-15.

101. that Dr. Holland had a markedly enlarged liver weighing 3,080 grams, while a liver normally weighs 1600 grams. 10

It was brownish- yellow, and of hinged consistency, consistent with fatty liver. Id. p. 67, l. 24-25 to p. 68, 1- 2, p. 70 l. 7-12.

102. nutritional state at the time of his death, weighing 240 pounds. Id. p. 50, l. 9-10; see also

Dkt. No. 141-3.

103. Dr. Cortés further explained that a person foaming at the mouth is indicative of pulmonary edema. Id. p. 33, l. 12-25.


104. According to Dr. Cortés, there are no pathognomonic 11

specific changes that indicate specifically drowning. Id. p. 57, l. 19-25.

105. Dr. Cortés further testified that by drawing the conclusion of drowning as a cause of death he could not rule out that Dr. Holland suffered a heart attack. Id. p. 73, l. 19-22.

III. LEGAL STANDARD Motion for Summary Judgment Standard (Fed. R. Civ. P. 56)

A motion for summary judgment is governed by Rule 56 of the Federal Rules of genuine dispute as to any material fact and the movant is entitled to judgment as a matter

that a reasonable jury could resolve the point in favor of the non- See

Johnson v. Univ. of P.R., 714 F.3d 48, 52 (1st Cir. 2013); Prescott v. Higgins, 538 F.3d 32, 40 (1st Cir. 2008) (citing Thompson v. Coca Cola Co., 522 F.3d 168, 175 (1st Cir. 2008)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-250 (1986); Calero Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004). The analysis with respect to whether or not a -movant would submission to a jury must be guided by the substantive evidentiary standards that apply

Liberty Lobby, Inc., 477 U.S. at 255 (applying the summary judgment standard

11 istinctively characteristic of a particular disease or condition . 2018. https://www (6 April 2018).

while taking into account a higher burden of proof for cases of defamation against a public figure). In order for a di Sands v. Ridefilm Corp., 212 F.3d 657, 660 661 (1st Cir. 2000) (citing Liberty Lobby, Inc., 477 U.S. at 247 248); Prescott, 538 F.3d at 40 (1st Cir. 2008) (citing Maymí v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008)).

DeNovellis v. Shalala,

124 F.3d 298, 306 (1st Cir. 1997) (citing the advisory committee note to the 1963 Amendment to Fed. R. Civ. P. 56(e)). The moving party must demonstrate the absence of a genuine issue as to any outcome-determinative fact on the record. Shalala, 124 F.3d at 306. Upon a showing by the moving party of an absence of a genuine issue of material fact, the burden shifts to the nonmoving party to demonstrate that a trier of fact could reasonably find in his favor. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The non- Maldonado Denis v. Castillo Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994). The non- Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990); see also Suarez v.

Pueblo Int'l., 229 F.3d 49, 53 (1st Cir. 2000) (stating that a non-movant may shut down a summary judgment motion only upon a showing that a trial-worthy issue exists). As a affect an otherwise properly supp Liberty Lobby, Inc., 477 U.S. at 247 248. Similarly, summary judgment is appropriate where the Ayala Gerena v. Bristol Myers Squibb Co., 95 F.3d 86, 95 (1st

Cir. 1996); Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).

reasonable inferences in favor of the non-moving party while ignoring conclusory

Smith v. Jenkins, 732 F.3d 51, 76 (1st Cir. 2013) (reiterating Shafmaster v. United States, 707 F.3d 130, 135 (1st Cir. 2013)). The Court must review the record as a whole and refrain from engaging in the assessment of credibility or the gauging the weight of the evidence presented. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 135 (2000); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); see also Pina v. Children's Place, 740 F.3d 785, 802 (1st Cir. 2014). inferences from the facts Reeves, 530 U.S. at 150

(quoting Anderson, 477 U.S. at 250 51).

Summarizing, that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law. See Fed. R. Civ. P. 56(a).

Hence, in order to prevail, Defendants must demonstrate that, even admitting well-pleaded allegations in light most favorable to Plaintiffs, the applicable law compels a judgment in its favor.

IV. LEGAL ANALYSIS A. Negligence under Article 1802 of the Puerto Rico Civil Code The determinative issue breach of duty of care by Defendants. omission causes damage to another through fault or negligence shall be obliged to repair

personal injuries must plead, and ultimately prove, four elements: 1) a duty requiring the

defendant to conform to a certain standard of conduct; 2) a breach of that duty; 3) proximate cause; and 4) damages. Coyne v. Taber Partners I, 53 F.3d 454, 459-462 (1st Cir. 1995); Woods-Leber v. Hyatt Hotels of P.R., 124 F.3d 47, 50 (1st Cir. 1997). requirements cannot be satisfied unless the plaintiff proves that the injury was reasonably

Woods-Leber, 124 F.3d at 50-51. Therefore, to recover on a theory of negligence, Plaintiff

must show that the negligent acts or omissions of El Conquistador were the proximate cause of Dr. injuries and eventual demise. Malave-Felix v. Volvo Car Corp., 946 and not actual or factual cause).

Irvine v. Murad Skin Research Laboratories, Inc. breaches the duty of reasonable care when his actions create reasonably foreseeable risks. in order to carry h Vazquez-Filippetti v. Banco Popular de P.R., 504 F.3d 43, 49 (1st Cir. 2007). An actor is negligent if he fails to exercise due diligence to prevent a foreseeable injury. Malave-Felix erson is see Rivera-Santiago v. United States, Civ. No. 08-1266, 2009 WL 702235, at *3 (D.P.R. Mar. 11, 2009)(holding sonably anticipated by a

The duty of care may therefore be defined as an obligation to anticipate and take measures against a danger that is reasonably foreseeable. The Supreme Court of Puerto to requiring that the precise risk or of a determinate Pabón Escabí v. Axtmayer, 90 P.R. Dec. 20, 25

(1964) (emphasis added). order to be liable for negligence a person need not foresee the specific consequences that

did, in fact, result from a given act or omission, still, those specific consequences must fall within the general class of consequences that in a normal person's experience flow from such an act or omission. Herminio M. Brau del Toro, 1 Daños y Perjuicios Extracontractuales [Torts] pp. 184 185 (1986). Thus, the Supreme Court has stated a stairwell, even if constitutes negligence imputable to the lessor, it is [negligence] in

relation with the usual foreseeable risk of injury created by that type of dangerous

condition, such as slipping and falling, or trippi therefore held that the lessor was not responsible for a mugging on that same stairwell.

Estremera v. Inmobiliaria Rac, Inc., 9 P.R. Offic. Trans. 1150, 1156 norm of foreseeability is that the risk that must be foreseen must be based on probabilities

1 Daños y Perjuicios Extracontractuales [Torts] at 185. B. Duty of Care in Hotels The normal rule is that a person does not have a duty to prevent an attack upon another by a third party, J.A.D.M. v. Plaza Carolina Shopping Center, P.R. Dec. , 1993 WL 839838 (1993), or by wild animals, P.R. Laws Ann. tit. 31 § 5144; see also Woods- Leber, supra. In a number of cases, however, the Puerto Rico Supreme Court has established that certain types of institutions have a duty to protect certain persons from attacks by third parties. Tormos Arroyo v. Departamento de Instrucción Pública, 1996 WL 498870 (P.R.) (Public junior high school's duty to protect students from criminals); J.A.D.M. v. Plaza Carolina Shopping Center, 93 J.T.S. 26 (Shopping center's duty to protect patrons from criminals); Elba A.B. v. Univ. of Puerto Rico, 125 P.R. Dec. 294 (1990) (University's duty to protect student from criminals); Pabón Escabí, 90 P.R. Dec. 20 (Hotel's duty to protect guests from criminals); Cruz Costales v. Commonwealth of Puerto Rico, 89 P.R. Dec. 105 (1963) (Public high school's duty to protect students from criminals). In that sense a hotels--that basically substitutes a home--, a hospital and a school (not to mention more) are obliged to maintain a reasonable measure of security for the protection of their guests, patients and students, contrary to a contractor or a business whose scope

of activity does not encompass the need to provide said protection. Estremera, 9 P.R. Offic. Trans. at 1154. After a plaintiff demonstrates that the defendant breached its duty of care, plaintiff Vazquez- Filippetti, 504 F.3d at 49; see Malave-Felix only if his negligence is

1802, proximate cause is defined in terms of foreseeability, which requires that a reasonable person should have foreseen the consequences of what actually occurred. Vazquez-Filippetti, 504 F.3d at 49; Wojciechowicz v. U.S., 582 F.3d 57, 67 (1st Cir. 1999); Malave-Felix, 946 F.2d at 971-72; Grajales-Romero v. Am. Airlines, Inc., 194 F.3d 288 (1st Cir. eeable and could have been avoided if the defendant had not breached its duty of

Wojciechowicz, 582 F.3d at 67 (quoting Grajales-Romero, 194 F.3d at 296). In order for an event to be foreseeable, a reasonable, prudent person must be able to conclude recognizable by reasonably prudent persons acting with due diligence under the same or

Coyne, 53 F.3d at 460. e the

defendant could have reasonably foreseen that the injuries would result from his Vazquez-Filippetti be judged against what a reasonable person, under the same or similar circumstances, would have Wojciechowicz, 582 F.3d at 67.

question of proximate causation is sometimes for the court are properly jury questions. In any case where there might be reasonable difference of

opinion as to evaluative determinations ... the question is one for the jury. Marshall v. Perez Arzuaga, 828 F.2d 845, 848 49 (1st Cir. 1987) (citing Springer v. Seamen, 821 F.2d 871, 876 (1st Cir.1987)). Considering the fact that in Puerto Rico there is no jury in civil cases, it is the federal law who must control the division of responsibility between a judge and the jury. Id. B. Assumption of Risk Doctrine On the other hand, Puerto Rico has adopted the concept of assumption of risk in actions for damages in its primary and secondary senses: (1) the primary sense--where --which is actually a form of comparative negligence. See Soto v. Tropigas de P.R., 17 P.R. Offic. Trans. 1035. The doctrine of assumption of risk is based on the common law thought and Id. at 1039; see James, Assumption of Risk, 61 Yale L. J. 141, 142 (1952). Puerto Rico is a comparative negligence jurisdiction. Art. 1802 specifically provides that the negligence of a plaintiff will not bar a tort-based claim but rather that the relief awarded shall be reduced proportionate to the de Rivera Santiago v. United States, 2009 WL 702235, at *4 (D.P.R. Mar. 11, 2009); see Pons Anca

v. Engebretson, 160 D.P.R. 347, 362 (2003). It has been accepted that comparative fault in cases of negligence is the most reasonable and Montero Saldana v. Amer. Motors Corp., 1978 WL 48845 (P.R. May 31, 1978). Moreover, nder Puerto Rico's comparative negligence system, the jury can assess whether defendants' negligence caused the incident, whether plaintiffs' negligence caused injuries, or whether each side exhibited negligence that contributed to [sa Blomquist v. Horned Dorset Primavera, 2015 WL 1894317, at *5 (D.P.R. Apr. 27, 2015).

n Echevarria v. Despiau, 72 P.R.R. 442 (1951), the Supreme Court of Puerto Rico adopted the rule, and citing Professor Prosser, found the doctrine applicable to situations where the plaintiff, with full knowledge of the risk, enters into a relation with the defendant involving danger to himself. In such situations the plaintiff is said to act at his own risk and the defendant is relieved of liability. Rubio v. S. Air Transp., Inc., 388 F. Supp. 1021, 1024 (D.P.R. 1975), aff'd, 539 F.2d 701 (1st Cir. 1976). In the instant case, El Conquistador, argues, allegations of negligence are simply not true, and this summary judgment is warranted dismissing Further, El Conquistador contends, allegations concern omissions for which there was no duty to act to begin with and See Dkt. No. 127. Whereas, plaintiffs aver that El Conquistador breached the general duty of care it owed to its guests and clients by not providing basic safeguards to ensure their safety and wellbeing on January 1, 2013; and, in its failure to act with the reasonable prudence and attention that the circumstances demanded. See Dkt. No. 70.

There is no question that while Dr. Holland was engaging a snorkeling activity, he suddenly became unresponsive, and eventually died at the beach. The cause of death according to plaintiffs was drowning, and according to El Conquistador, a cardiorespiratory event due to an untreated heart condition. Additionally, if the Court were to assume that El Conquistador incurred on a negligent act, by preventing to take safety measures, the Court could find a causal relationship between omission and the incident that re El Conquistador evidently owed Dr. Holland a general duty of care and protection. However, the Court must determine whether there was a breach of duty of care from El Conquistador for failing to implement a lifeguard program and safety measures in Palomino Island until after the incident. After a careful examination of the motions and the documents contained therein, the Court finds that plaintiffs have failed to provide evidence that made foreseeable that As previously stated, Dr. Holland was performing a voluntary recreational activity. It is a known fact that snorkeling is not merely swimming at the beach nor jumping small waves but a much more strenuous activity. Most critical, Dr. Holland suffered from several conditions that would endanger his health upon the performance of extraneous activities such as snorkeling, i.e., (1) untreated hypertension, (2) enlarged liver, (3) slight atherosclerosis, and (4) enlarged heart, to the point of almost double the size of a normal heart, and a thickened blood ventricle, among others. Thus, Dr. Holland decided to engage in a recreational activity

with full knowledge of the risk, See Rubio, supra. The Court finds that Dr. Holland, as a physician was capable of understanding the risks entailed in practicing recreational activities such as snorkeling. Moreover, during his snorkeling expedition of one (1) kilometer towards Palominito, he was accompanied by Mrs. Lisa Jassin, who has specialized training as a lifeguard, CPR and the use of an AED and who immediately helped Dr. Holland in the moments he was in distress at open sea. See Factual Findings ¶¶ 51-53, 59. The Court further notes that when the emergency situation occurred, Dr. Holland was approximately half way towards Palominito, that is, approximately 250 meters from the shore. 12

Id. ¶¶ 40-41. Consequently, the first aid provided to Dr. Holland by Mrs. Jassin, who was only 12 feet away, has proven to be much more effective than any help El Conquistador or a lifeguard could have provided Dr. Holland, considering his distance from shore at the time of the event. Id. Further, his head remained at all times above the water pursuant to the testimony of Lisa Jassin. Id. ¶ 62. Consequently, plaintiffs failed to meet the burden to establish a breach duty of care, as the Court will illustrate hereafter. It is undisputed that the January 1, 2013, the National Weather Service bulletin submitted by plaintiffs as evidence there were strong currents in Palomino on the day of the incident, is inconsistent with the conditions described in Palomino on the day of the events. Id. ¶¶ 30-33. Although the bulletin projected waves of 10 to 14 feet, there is

12 The total distance between Isla Palominito and Isla Palomino is 1 km (kilometers) and 84.66 meters. isla_palominitos/isla_palominos. (26 September 2018).

undisputed testimony from p own oceanographer expert witness, Dr. Canals that the waves between Palomino and Palominito were about one to two feet only. Id. ¶ 35. The undisputed tidal change was approximately 1 foot, which is typical for the Palomino area. Id. ¶ 37. The undisputed westward current between Palomino and Palominito was 0.3 to 0.45 knots or 0.6 to 0.9 knots. Id. ¶ 38. It is further undisputed that the currents experienced by Dr. Holland were of 0.6 to 0.9 knots. Id. ¶ 87. Consequently, Plaintiffs cannot establish that the weather conditions in Palomino and Palominito on the day of the events were consistent with the weather bulletin. Thus, plaintiffs cannot establish a As such, the Court concludes the conditions on Palomino Island on January 1, 2013 were consistent with engaging in snorkeling. Moreover, as Dr. Holland rented his snorkeling equipment, he did not rent floatation belts, which were available in La Casa del Mar. See ¶¶17, 22. It is further undisputed that on the day of the incident, there were 12 to 15 belts available for rent. Id. ¶ 21. The Snorkeling Liability and Release Policy further demonstrates that two belts were rented after Dr. Holland rented the equipment for his party. Id. ¶ 23; see also Dkt. No. 58-1. Thus, the Court can conclude that when Dr. Holland rented his equipment he decided not to rent floatation devices, although they were readily available for rent and use. Plaintiffs have also failed to submit evidence that there was a duty from El Conquistador to provide floatation devices when practicing snorkeling. It is further undisputed that p own scuba expert, Alberto Marti, confirmed there was no rule, law or regulation requiring the use of floatation devices on January 1, 2013. ¶ 76.

rs. Jassin, who has lifeguard, CPR and AED training was the idoneus person to aid Dr. Holland while he was physically distressed at open sea, as she was close to Dr. Holland when he became unresponsive. ¶¶ 51-54, 59. It is further undisputed that the first responder to Dr. Id. Plaintiffs have failed to submit evidence that proves Dr. Holland would have survived if first aid were provided by El Conquistador instead of Mrs. Jassin. Further, by the time Dr. Holland received assistance from the hotel personnel, CPR had already been performed by Dr. Laura Baum-Holland, Dr. John Ruge, and Dr. Armacost. ¶¶ 48, 63, 65. Moreover, a defibrillator was available at shore and used on Dr. Holland within approximately ten (10) minutes. ¶ 69. But, the Court insists that he was duly well attended prior to the use of a defibrillator by physicians Laura Baum- Holland, John Ruge and Melinda Armacost. There are no allegations nor evidence that such efforts were deficient. Further, pursuant to Dr. Ru already dead upon his arrival to the shore and before the need of a defibrillator.

Most critical is the determination of the Court as to whether the release form that Dr. Holland signed as he was renting the snorkeling equipment properly released El Conquistador from any type of liability concerning the instant claim. The Court must also determine whether the release signed by Dr. Holland properly certified that he did not suffer any mental or physical disease, illness or disability See discussion, infra.

C. Validity of Snorkeling Liability and Release Policy signed by Dr. Holland Plaintiffs stipulated that Dr. Holland signed the Snorkeling Liability and Release Policy produced by concessionaire, La Casa del Mar. Since the language of the waiver is critical to our analysis, the Court includes the release in its entirety. La Casa del Mar Dive Center Snorkeling Liability and Release Policy (Please Read Below Carefully and Sign)

Medical History I neither am nor have suffered from any mental and/or physical disease, illness, or disability that would render me unfit for snorkeling. Release Liability I fully understand that my snorkeling activity is at my own risk, and hear by [sic] release La Casa del Mar Dive Center, El Conquistador Resort, the . I also understand that I will hold them harmless from all claim, risk, damage, injury, and liability arising from any injury or illness sustained while engaged in snorkeling caused from any negligence or default of any other snorkelers. Equipment I hear by [sic] accept the equipments as follows: I agree that the use of such equipment is at my own risk. I shall return the equipment in good working order, the same way and complete as was received. I am also financially liable from any deviations, therefore, at the cost listed below:

Lost or Damage All rental equipment must be returned by 3:30. If returned late for any reason an additional charge of $10.00 per set will be applied. No exceptions!!! Date: 1.1.13 (Emphasis ours). See Dkt. No. 58-2. In assessing the validity of a waiver [Release], courts almost universally consider the following: (1) whether the person signing the waiver had informed consent; (2) whether the clause was inconsistent with public policy; and (3) whether the clause

constitutes an invalid adhesion Olivelli v. Sappo Corp., 225 F. Supp. 2d 109, 116 (D.P.R. 2002) clear, unambiguous, and explicit, and that it express an agreement not to hold the

released party liabl Id. at 118. Furthermore, [i]n cases arising from hazardous recreational pursuits, to permit released claims to be brought to trial defeats the purpose for which releases are requested and given, regardless of which party ultimately wins the verdict. Defense costs are devastating. Unless courts are willing to dismiss such actions without trial, many popular and lawful recreational activities are destined for extinction. Olivelli, at 118 (citing National and International Brotherhood of Street Racers, Inc. v. Superior Court, 215 Cal.App.3d 934, 264 Cal.Rptr. 44, 46-47 (1989))(Emphasis ours). The Court also notes that a release Olivelli at 118.

After a thorough review of the Snorkeling Liability and Release Policy (Dkt. No. 58- 2), the Court finds that the release complies with the requirements listed in Olivelli. The document releases concessionaire, La Casa del Mar and El Conq . . . from all claim, risk, damage, injury, and liability arising from any injury or illness sustained while See supra. Further, the release clearly states that the snorkeling activity is at the own risk

of the person. The release further contains a certification that if signed, constitutes a declaration that he has no physical disease, illness or disability that could prevent him from safely practicing snorkeling. The Court finds that Dr. Holland was a physician

who was fully aware or should have known as to the of the ramifications of signing a liability and release document, given that, physicians typically provide these types of documents to their patients prior to rendering treatment. Moreover, when signing the document, Dr. Holland did not disclose that he suffered from several untreated conditions, hence, was at risk when engaging in recreational activities such as snorkeling. Among the conditions that Dr. Holland presented when his autopsy was performed was an untreated hypertension and an enlarged heart weighing 560 grams, almost twice the weight of a normal heart, as a result thereof; slight atherosclerosis; an enlarged liver of 3,080 grams, that is, 1480 grams larger than a normal liver, brownish-yellow and of hinged consistency, consistent with fatty liver; and obese in weight. ¶¶ 94-99. By signing the release document, Dr. Holland certified that he did not suffer from any physical disease that would prevent him from engaging in a snorkeling activity. However, the pathologist findings during Dr. hysical condition was the complete opposite of what was attested by Dr. Holland in said document. Id. Most critical and determinative, Dr. Ruge, the neurosurgeon who assisted Dr. Holland upon his arrival to shore testified that his first assessment as to condition upon his arrival to shore was that he was dead, totally cyanotic and blue. He was also pulseless and breathless. 13

¶ 64. Thus, there was nothing additional that any

13 No medical that Dr. Holland drowned as opposed to suffering a cardiorespiratory event while at sea, as suggested by defendants. The only medical information provided by the parties was the autopsy report, the transcript condition upon his arrival to shore. ¶¶ 64, 92-105.

third party, including El Conquistador, while engaging in snorkeling activity.

More importantly, the Court finds that regardless of Dr. Holland he effectively released El Conquistador from liability regarding the snorkeling activity he

was engaging in prior to his demise. However, the Court notes that plaintiffs failed to submit evidence in the instant summary judgment request and opposition thereto that could prove that El Conquistador could have played a role or could be liable as to Dr. accidental death.

VI. CONCLUSION It is well established that at summary judgment stage, the moving party bears a two- Veda-Rodríguez v. Puerto Rico,

110 F.3d 174, 179 (1st Cir. 1997). It is equally well- determinations, the weighing of the evidence, and the drawing of legitimate inferences

Reeves v. Sanderson Plumbing Prod., 530 U.S. 133, 150 (2000)(internal citations omitted). inferences in the light most favorable to [the non- Vera v. McHugh, 622

F.3d 17, 26 (1st Cir. 2010). Even when doing so, the Court finds that summary judgment is warranted in the instant case as plaintiffs have failed to submit evidence that establishes a duty of care that was breached by El Conquistador. More importantly, Dr. Holland voluntarily signed the Snorkeling Liability and Release Policy prior to engaging in

a demanding recreational activity, wherein he affirmatively attested that he was in a physical condition that renders him fit to engage in snorkeling between two (2) islands that were one (1) kilometer apart from each other. cause of death, a release was effectively obtained and no breach of duty, law or regulation has been found by the Court. Consequently, the Court hereby GRANTS El motion for summary judgment. For all the reasons elucidated herein, judgment at Dkt. No. 127 is hereby GRANTED. Judgment of dismissal is to be entered

accordingly. IT IS SO ORDERED. In San Juan, Puerto Rico, on this 30 th

day of September, 2018. S/Daniel R. Domínguez Daniel R. Domínguez United States District Judge

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