807 F.

2d 1102
6 Fed.R.Serv.3d 815

Jose Domingo COLMENARES VIVAS, et al., Plaintiffs,

Appellants,
v.
SUN ALLIANCE INSURANCE COMPANY, et al.,
Defendants, Appellees.
No. 86-1204.

United States Court of Appeals,

First Circuit.
Argued Oct. 9, 1986.
Decided Dec. 29, 1986.

Harold D. Vicente, Santurce, P.R., with whom Hector Cuebas Tanon, San
Juan, P.R., and Harold D. Vicente Law Offices, Santurce, P.R., were on
brief, for plaintiffs, appellants.
Francisco Agrait-Oliveras, Hato Rey, P.R., for defendant, appellee Sun
Alliance Ins. Co.
Francisco J. Colon Pagan with whom Cordero, Colon & Miranda, Old San
Juan, P.R., was on brief, for defendant, appellee Westinghouse Elec. Corp.
Before BOWNES, Circuit Judge, BROWN, * Senior Circuit Judge, and
TORRUELLA, Circuit Judge.
BOWNES, Circuit Judge.

Appellants are plaintiffs in a diversity action to recover damages for injuries

they suffered in an accident while riding an escalator. After the parties had
presented their evidence, the defendants moved for and were granted a directed
verdict. The court held that there was no evidence of negligence and that the
doctrine of res ipsa loquitur, which would raise a presumption of negligence,
did not apply. We reverse the directed verdict and remand the case to the
district court because we hold that res ipsa loquitur does apply.

I. BACKGROUND
2

The relevant facts are not in dispute. On February 12, 1984, Jose Domingo
Colmenares Vivas and his wife, Dilia Arreaza de Colmenares, arrived at the
Luis Munoz Marin International Airport in Puerto Rico. They took an escalator
on their way to the Immigration and Customs checkpoint on the second level.
Mrs. Colmenares was riding the escalator on the right-hand side, holding the
moving handrail, one step ahead of her husband. When the couple was about
halfway up the escalator, the handrail stopped moving, but the steps continued
the ascent, causing Mrs. Colmenares to lose her balance. Her husband grabbed
her from behind with both hands and prevented her from falling, but in doing
so, he lost his balance and tumbled down the stairs. Mr. and Mrs. Colmenares
filed a direct action against the Sun Alliance Insurance Company (Sun
Alliance), who is the liability insurance carrier for the airport's owner and
operator, the Puerto Rico Ports Authority (Ports Authority). Sun Alliance
brought a third-party contractual action against Westinghouse Electric
Corporation (Westinghouse) based on a maintenance contract that required
Westinghouse to inspect, maintain, adjust, repair, and replace parts as needed
for the escalator and handrails, and to keep the escalator in a safe operating
condition.

Six days before the trial was scheduled to begin, appellants filed a motion to
amend their complaint to allege that Westinghouse was directly liable for their
injuries. Westinghouse opposed the motion and asked that it be allowed time to
conduct discovery before the trial if the motion were granted. The court denied
appellants' motion.

The trial was conducted on January 30 and 31, 1986. Appellants called four
witnesses. The Ports Authority's contract and maintenance supervisor testified
about his daily weekday inspections of the escalator, about the maintenance
contract with Westinghouse, about inspection and maintenance procedures, and
about the accident report and subsequent repair and maintenance of the
escalator.1 The Ports Authority's assistant chief of operations testified about the
accident report. Appellants' testimony concerned the accident and their injuries.

Sun Alliance moved for a directed verdict. Appellants argued in opposition that
the evidence presented was sufficient to show negligence and, in the alternative,
that res ipsa loquitur should be applied to raise an inference that the Ports
Authority had been negligent. At this point the court decided to allow the trial
to continue. Sun Alliance and Westinghouse submitted their case on the basis
of the testimony already presented and Sun Alliance renewed its motion for a
directed verdict. After hearing the parties' arguments, the court ruled that there

was no evidence that the Ports Authority had been negligent, and that the case
could not go to the jury based on res ipsa loquitur because at least one of the
requirements for its application--that the injury-causing instrumentality was
within the exclusive control of the defendant--was not met.
6

Appellants argue that the district court erred in three ways: (1) by not applying
res ipsa loquitur; (2) by granting Sun Alliance's second motion for a directed
verdict after it already had denied such a motion on the same evidence; and (3)
by not allowing the appellants to amend their complaint to allege that
Westinghouse was directly liable for their injuries.

II. RES IPSA LOQUITUR

7

Under Puerto Rico law, three requirements must be met for res ipsa loquitur
("the thing speaks for itself") to apply: "(1) the accident must be of a kind
which ordinarily does not occur in the absence of someone's negligence; (2) it
must be caused by an agency or instrumentality within the exclusive control of
defendant; [and] (3) it must not be due to any voluntary action on the part of
plaintiff." Community Partnership v. Presbyterian Hosp., 88 P.R.R. 379, 386
(1963). If all three requirements are met, the jury may infer that the defendant
was negligent even though there is no direct evidence to that effect. Id. at 398.

8A. The First Requirement: Inference of Negligence

9

The first requirement that must be met for res ipsa loquitur to apply is that "the
accident must be such that in the light of ordinary experience it gives rise to an
inference that someone has been negligent." Community Partnership v.
Presbyterian Hosp., 88 P.R.R. at 388-89. It is not clear to us whether the district
court decided that this requirement was met, although the court did suggest that
it was giving the benefit of the doubt on this question to the appellants. We hold
that this requirement was met because an escalator handrail probably would not
stop suddenly while the escalator continues moving unless someone had been
negligent. 2

10

This requirement would not be met if appellants had shown nothing more than
that they had been injured on the escalator, because based on this fact alone it
would not be likely that someone other than the appellants had been negligent.
See Conway v. Boston Elevated Ry. Co., 255 Mass. 571, 574, 152 N.E. 94, 9495 (1926) (negligence element not satisfied when all that had been shown was
that a child's hand had been caught beneath the escalator handrail belt); Fuller
v. Wurzburg Dry Goods Co., 192 Mich. 447, 448-49, 158 N.W. 1026, 1026
(1916) (negligence may not be inferred from a fall on an escalator because the

plaintiff did not show that the escalator was improperly constructed or that it
malfunctioned). Here, it was not disputed that the handrail malfunctioned and
stopped suddenly, an event that foreseeably could cause riders to lose their
balance and get injured. Thus, the evidence gave rise to an inference that
someone probably had been negligent in operating or maintaining the escalator,
and the first requirement for the application of res ipsa loquitur was met.
B. The Second Requirement: Exclusive Control
11
12

The second requirement for res ipsa loquitur to apply is that the injury-causing
instrumentality--in this case, the escalator--must have been within the exclusive
control of the defendant. The district court found that this requisite was not met,
despite the parties' stipulation that "[t]he escalator in question is property of and
is under the control of the Puerto Rico Ports Authority." We agree that this
stipulation was not by itself enough to satisfy the res ipsa loquitur requirement.
It did not exclude the possibility that someone else also had control over the
escalator; indeed, the stipulation said that Westinghouse maintained the
escalator. We hold, however, that the Ports Authority effectively had exclusive
control over the escalator because the authority in control of a public area has a
nondelegable duty to maintain its facilities in a safe condition.

13

Few courts have required that control literally be "exclusive." See F. Harper, F.
James & O. Gray, The Law of Torts Sec. 19.7, at 45 (2d ed. 1986). The
Supreme Court, reviewing a case in which this court applied the exclusive
control requirement literally, said that the question "really is not whether the
application of the rule relied on fits squarely into some judicial definition,
rigidly construed," because such an approach unduly restricts "the jury's power
to draw inferences from facts." Jesionowski v. Boston & Maine R.R., 329 U.S.
452, 457, 67 S.Ct. 401, 91 L.Ed. 416 (1946) (reversing 154 F.2d 703 (1st Cir.)).
The exclusive control requirement, then, should not be so narrowly construed as
to take from the jury the ability to infer that a defendant was negligent when
the defendant was responsible for the injury-causing instrumentality, even if
someone else might also have been responsible. The purpose of the requirement
is not to restrict the application of the res ipsa loquitur inference to cases in
which there is only one actor who dealt with the instrumentality, but rather "to
eliminate the possibility that the accident was caused by a third party."
Community Partnership v. Presbyterian Hosp., 88 P.R.R. at 390 (emphasis
added); see also Giacalone v. Raytheon Mfg. Co., 222 F.2d 249, 252 (1st
Cir.1955) ("[I]n the absence of evidence of control no inference of causal
negligence on the part of the defendant can be drawn from the improper
functioning of the instrumentality, for it would be just as probable that the
negligence of someone other than the defendant caused it to function

improperly with injurious consequences."). It is not necessary, therefore, for the

defendant to have had actual physical control; it is enough that the defendant,
and not a third party, was ultimately responsible for the instrumentality. Thus,
res ipsa loquitur applies even if the defendant shares responsibility with
another, or if the defendant is responsible for the instrumentality even though
someone else had physical control over it. See W. Keeton, D. Dobbs, R. Keeton
& D. Owen, Prosser and Keeton on the Law of Torts Sec. 39, at 250-51 (5th ed.
1984) (exclusive control requirement met in a variety of circumstances in which
the defendant did not have sole responsibility or physical control over the
injury-causing instrumentality); see also Otis Elevator Co. v. Yager, 268 F.2d
137, 143 (8th Cir.1959) (property owner and not maintenance company had
exclusive control over elevator); Restatement (Second) of Torts Sec. 328D
comment g (1965) (exclusive control requirement may be met even though
responsibility was shared or someone else had physical control). It follows that
a defendant charged with a nondelegable duty of care to maintain an
instrumentality in a safe condition effectively has exclusive control over it for
the purposes of applying res ipsa loquitur. See F. Harper, F. James & O. Gray,
The Law of Torts Sec. 19.7, at 47 (2d ed. 1986) (exclusive control requirement
met if defendant had nondelegable duty); W. Keeton, D. Dobbs, R. Keeton &
D. Owen, Prosser and Keeton on the Law of Torts Sec. 39, at 250-51 (5th ed.
1984) (same); Restatement (Second) of Torts Sec. 328D comment g (1965)
(same). Unless the duty is delegable, the res ipsa loquitur inference is not
defeated if the defendant had shifted physical control to an agent or contracted
with another to carry out its responsibilities.
14

We hold that the Ports Authority could not delegate its duty to maintain safe
escalators. There are no set criteria for determining whether a duty is
nondelegable; the critical question is whether the responsibility is so important
to the community that it should not be transferred to another. See W. Keeton,
D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts Sec.
71, at 512 (5th ed. 1984). The Ports Authority was charged with such a
responsibility. It was created for a public purpose, which included the operation
and management of the airport. See P.R. Laws Ann. tit. 23, Secs. 333, 336
(1964). A concomitant of this authority is the duty to keep the facilities it
operates in a reasonably safe condition. The public is entitled to rely on the
Ports Authority--not its agents or contractors--to see that this is done. The Ports
Authority apparently recognized this responsibility, for its maintenance and
contract supervisor conducted daily weekday inspections of the escalators
despite the maintenance contract with Westinghouse.

15

Duties have been seen as nondelegable in several analogous situations. For

example, a public authority may not delegate to an independent contractor its

responsibility to see that work in a public place is done carefully. See, e.g.,
Snyder v. Southern Cal. Edison Co., 44 Cal.2d 793, 799, 285 P.2d 912, 915
(1955) ("Where an activity involving possible danger to the public is carried on
under public franchise or authority the one engaging in the activity may not
delegate to an independent contractor the duties or liabilities imposed on him by
the public authority...."); Restatement (Second) of Torts Sec. 417 (1965)
(restating general principle that there is a nondelegable duty to see that work in
a public place is carefully done). Also, a government may not delegate its
responsibility to maintain safe roads and similar public places. See, e.g., Lopes
v. Rostad, 45 N.Y.2d 617, 624, 412 N.Y.S.2d 127, 129, 384 N.E.2d 673, 675,
412 N.Y.S.2d 127, 129 (1978) (governmental body has nondelegable duty to
maintain safe roads); Restatement (Second) of Torts Sec. 418 (1965) (restating
general principle that there is a nondelegable duty to maintain safe highways
and other public places). Finally, an owner has a nondelegable duty to keep
business premises safe for invitees. See, e.g., Blancher v. Bank of Cal., 47
Wash.2d 1, 9, 286 P.2d 92, 96 (1955) (bank had nondelegable duty to keep its
premises reasonably safe); Restatement (Second) of Torts Sec. 344 (1965)
(restating general principle that there is a nondelegable duty to keep business
premises safe). These examples demonstrate a general tort law policy not to
allow an entity to shift by contract its responsibility for keeping an area used by
the public in a safe condition. It would be contrary to this policy to allow the
owner and operator of an airport terminal to delegate its duty to keep its facility
safe. We hold, therefore, that the district court erred in ruling that the exclusive
control requirement was not met.3
C. The Third Requirement: The Plaintiffs' Actions
16
17

The third requirement that must be met for res ipsa loquitur to apply is that the
accident must not have been due to the plaintiff's voluntary actions. The district
court found, and we agree, that there was no evidence that Mr. and Mrs.
Colmenares caused the accident. Indeed, there is no indication that they did
anything other than attempt to ride the escalator in the ordinary manner.
Therefore, we hold that all three requirements were met and that the jury should
have been allowed to consider whether the Ports Authority was liable based on
the permissible inference of negligence raised by the application of res ipsa
loquitur.4 III. THE MOTION TO AMEND THE COMPLAINT

18

Appellants contend that the court should have allowed them to amend their
complaint to allege that Westinghouse was directly liable for their injuries.
After a responsive pleading has been served, "a party may amend his pleading
only by leave of court or by written consent of the adverse party; and leave
shall be freely given when justice so requires." Fed.R.Civ.P. 15(b). The

decision to grant or deny a motion to amend a complaint is left to the sound

discretion of the district court. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct.
227, 230, 9 L.Ed.2d 222 (1962); Carter v. Supermarkets Gen. Corp., 684 F.2d
187, 192 (1st Cir.1982). But if the court decides not to grant leave to amend, it
must do so for a valid reason such as bad faith by the moving party,
unwarranted delay, or undue prejudice to the opposing party. Foman v. Davis,
371 U.S. at 182, 83 S.Ct. at 230; Carter v. Supermarkets Gen. Corp., 684 F.2d
at 192; Farkas v. Texas Instruments, Inc., 429 F.2d 849, 851 (1st Cir.1970),
cert. denied, 401 U.S. 974, 91 S.Ct. 1193, 28 L.Ed.2d 324 (1971).
19

The district court had valid reasons not to grant the appellants' motion to amend
their complaint. Westinghouse would have been prejudiced if it became a
defendant in a direct action only six days before the trial. It had conducted
discovery and prepared its case on the basis of a contractual indemnity
complaint, not direct liability. Granting leave to amend would have necessitated
a postponement of the trial to allow Westinghouse to conduct additional
discovery. Such a delay may be warranted if additional evidence had come to
light, but the appellants did not point to any such change of circumstances.
They claim that the change was necessary because Westinghouse raised
affirmative defenses of comparative negligence and exaggerated claims less
than two weeks before the trial was scheduled to begin, but they do not explain
how this might have affected their decision to bring a direct action against only
the Ports Authority's insurer. Given the discretion the district court had in this
matter, we hold that it did not err by denying the appellants' motion to amend
their complaint.

20

Reversed in part, affirmed in part. Remanded.

21

TORRUELLA, Circuit Judge (dissenting).

22

I must regretfully dissent. The doctrine established in Erie R.R. Company v.

Tomkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), has particular
significance in cases involving Puerto Rican tort law (derecho de danos ), in
which the Supreme Court of Puerto Rico has stated that "both as to its form and
content, the tort law applicable in Puerto Rico is the civil law system." Valle v.
Amer. Inter. Ins. Co., 108 D.P.R. 692, 695 (1979) (my translation). In Valle,
"the utilization of common law precepts to resolve civil law problems" was
specifically rejected. Id. at 696-97 (my translation).

23

Although the majority correctly states the Puerto Rican law as to res ipsa
loquitur, Community Partnership v. Presbyterian Hosp., 88 P.R.R. 379, 386

(1963) (for res ipsa loquitur to apply "(1) the accident must be of a kind which
ordinarily does not occur in the absence of someone's negligence; (2) it must be
caused by an agency or instrumentality within the exclusive control of
defendant; [and] (3) it must not be due to any voluntary action on the part of
plaintiff."), it overlooks well-established jurisprudence in applying that law to
the circumstances of this case.
24

The majority concludes that the first requirement of res ipsa loquitur, i.e.,
inference of negligence arising from the occurrence of the accident, "was met
because an escalator handrail probably would not stop suddenly while the
escalator continues moving unless someone had been negligent." Ante, at 5.
Although disclaiming reliance on the common law cases cited therein as ratio
decidendi for its conclusions, the majority, in footnote 2, cites various cases
which stand for the dubious proposition that an escalator is a common carrier.5
Id. n. 2.

25

In my view, solely because the handrail stopped and Mrs. Colmenares fell,
without further evidence as to why or how the handrail malfunctioned, does not
give rise to an inference of negligence by the Ports Authority. See Widow of
Blanco v. Metropolitan Bus Authority, 89 P.R.R. 722 (1963); Nevares v.
Municipality of Vega Baja, 101 P.R.R. 103 (1973). The case of Widow of
Blanco is particularly a propos because it did involve a public carrier, a bus
company, and the accident was similar in nature to that alleged in the present
case, i.e., a passenger fell when the bus she was riding suddenly lurched. Yet,
notwithstanding the high standard of care required in that case,6 and the total
control exercised by the bus company over the instrumentality causing the
accident, the Supreme Court of Puerto Rico stated that "a carrier is not an
insurer," id. at 723, and refused to find an inference of negligence merely from
the fact that the passenger fell as a result of the bus' sudden, unexpected lurch.
Id. at 724. In Nevares v. Municipality of Vega Alta, supra, that Court
specifically refused to apply res ipsa loquitur to the fall of a lighting pole at a
public plaza, concluding that such an event, without additional proof, did not
raise an inference of negligence. Id. at 109.

26

The malfunctioning of an escalator presents an even stronger argument against

the raising of an inference of negligence without additional proof as to the
cause of the malfunction. Although a court can take notice that an escalator is a
complicated piece of machinery, it has no basis of common knowledge for
inferring that its malfunction is the result of the operator's negligence.7 Expert
testimony is required to establish the basis for such an inference. Community
Partnership v. Presbyterian Hospital, 88 P.R.R. at 389. See also Fed.R.Evid.
702.

27

Puerto Rican tort law is enacted in Article 1802 of the Civil Code, 31 L.P.R.A.
Sec. 5141, which succinctly states: "A person who by an act or omission causes
damage to another through fault [culpa ] or negligence shall be obliged to repair
the damage so done." Fault (culpa ) involves delictive conduct of an affirmative
or voluntary nature. Reyes v. Heirs of Sanchez Soto, 98 P.R.R. 299, 303-04
(1970). Civil law negligence is "not anticipating and foreseeing the rational
consequences of an act, or of the failure to perform an act which a prudent
person could have foreseen under the same circumstances." Ramos v. Carlo, 85
P.R.R. 337, 342 (1962); Ramirez v. American R.R. Company of P.R., 17 P.R.R.
440 (1911). The essence of fault or negligence lies in the lack of diligence and
foresight on the part of the wrongdoer. See J. Castan, Derecho Civil Espanol,
Comun y Foral, at 146 (8th ed. 1954). Appellant presented no evidence from
which a jury could infer lack of diligence or foresight by appellees, and thus
negligence.

28

Because of the above, I respectfully dissent.

Of the Fifth Circuit, sitting by designation

A record of a subsequent repair made to the escalator was admitted to impeach

the contract and maintenance supervisor's testimony. The record indicated that
a sprocket was changed on February 23 in making repairs to the right-hand side
handrail. Because appellants presented their case and base this appeal on the
applicability of res ipsa loquitur, we do not consider whether evidence of this
repair required the court to submit the case to the jury on the issue of
negligence

In some jurisdictions, the courts have taken the position that escalator operators
are common carriers owing the highest degree of care to their passengers. See,
e.g., Domany v. Otis Elevator Co., 369 F.2d 604, 614 (6th Cir.1966) (applying
Ohio law), cert. denied, 387 U.S. 942, 87 S.Ct. 2073, 18 L.Ed.2d 1327 (1967);
May Dep't Stores Co. v. Bell, 61 F.2d 830, 834-35 (8th Cir.1932) (relying on
Pennsylvania and Ohio law). See generally Annotation, Liability for Injury on,
or in Connection with, Escalator, 66 A.L.R.2d 496, 499-501 (1959) (collecting
cases). This classification is potentially of much significance, because in Puerto
Rico a public carrier owes the highest degree of care possible to its passengers.
See Munoz v. New York & Puerto Rico S.S. Co., 72 D.P.R. 543, 546 (1951).
Moreover, an injury to a passenger on a common carrier may constitute a prima
facie case of negligence. See, e.g., May Dep't Stores Co. v. Bell, 61 F.2d at
835; cf. Ott v. J.C. Penney Co., 360 So.2d 524, 525-26 (La.Ct.App.1978) (an
escalator operator is a common carrier, but a plaintiff must at least show the

occurrence of an unusual event for res ipsa loquitur to apply). To our

knowledge, the Puerto Rico courts have not equated escalators to common
carriers, and such a determination is not properly made by this court in the first
instance. For the purposes of this appeal, however, it would not matter if the
stricter standard did apply, because we hold that an inference of negligence has
been raised even under the lower reasonable care standard
3

Sun Alliance and Westinghouse point to our opinion in Lee v. El Fenix de

Puerto Rico, 739 F.2d 24 (1st Cir.1984), for the proposition that the Ports
Authority did not have exclusive control over the escalator. In that case, the
plaintiff was injured when a light bulb on the balcony of her hotel room
exploded, cutting her arms and face. The district court reasoned, and we agreed,
that the cause of the explosion probably was a product defect. Because the
manufacturing of the bulb was not within the defendant's control, res ipsa
loquitur did not apply. Id. at 25-26. In this case, however, the appellants'
injuries were caused by a mechanical malfunction, which probably was the
result of faulty inspection and maintenance procedures. It is not very probable,
as it was in Lee, that a product defect was involved. Moreover, a light bulb on a
balcony is subject to a variety of external elements that may cause it to break,
while only a limited number of personnel attend to the inner workings of an
escalator, where the malfunction in this case likely occurred

As an additional ground for reversing the directed verdict, appellants argue that
the district court erred in granting a directed verdict after it already had denied
such a motion on the same evidence. Because we hold that the jury should have
been allowed to decide the issue of liability on the basis of res ipsa loquitur, it
is not necessary for us to consider whether the timing of the court's decision
also was improper. It does not seem unreasonable, however, for a court to grant
a renewed motion for a directed verdict, even though it denied the motion after
the plaintiffs' evidence had been presented, after having heard that no
additional testimony will be presented and after having had the benefit of
counsels' arguments on the applicability of res ipsa loquitur

Traditionally, even at common law, a common carrier is one "required by law

to convey passengers or freight without refusal if the approved fare or charge is
paid." Black's Law Dictionary 249 (5th ed. 1979)

The Court referred to the standard required, as "the highest degree of care and
prudence." Widow of Blanco, 89 P.R.R. at 724

Even in a common law jurisdiction one court has refused to apply res ipsa
loquitur to falls caused by escalator malfunctions, because "among the causes
of bumping on an escalator are foreign objects, such as parts of sneakers,

buttons, etc. dropped by passengers on the escalator, which have eluded the
combing mechanism ... and gotten swept into the internal workings of the
machinery." Birdsall v. Montgomery Ward and Co., Inc., 109 A.D.2d 969, 486
N.Y.S.2d 461 (N.Y.App.Div.), aff'd, 65 N.Y.2d 913, 493 N.Y.S.2d 456, 483
N.E.2d 131 (N.Y.1985)