United States Court of Appeals

For the First Circuit

No. 04-1028

DR. IRIS BETH RODRÍGUEZ-QUIÑONES,

Plaintiff, Appellee,

v.

JIMÉNEZ & RUIZ, S.E., d/b/a J & R LIMITED PARTNERSHIP;

DR. JORGE L. JIMÉNEZ-RIVERA; DR. OSCAR A. RUIZ-LACOMBA;

INTEGRAND ASSURANCE COMPANY,

Defendants, Appellants.

__________

CONSEJO DE TITULARES CONDOMINIO CLÍNICA LAS AMÉRICAS;

ROYAL & SUN ALLIANCE INSURANCE COMPANY OF PUERTO RICO, INC.;

J.R. ORTIZ SECURITY INC.; ACE INSURANCE COMPANY; 

AMERICAN INTERNATIONAL INSURANCE COMPANY; A-Z INSURANCE COMPANY;

JOHN DOE 01CV2274,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García-Gregory, U.S. District Judge]

Before

Boudin, Chief Judge,

Cyr, Senior Circuit Judge,

and Lipez, Circuit Judge.

Marcos Valls-Sanchez with whom Cobián & Valls was on brief for

appellants.

Judith Berkan with whom Mary Jo Mendez and Berkan/Mendez were

on brief for appellee.

March 29, 2005
-2-

BOUDIN, Chief Judge. This appeal arises from a tort

action brought by Dr. Iris Beth Rodríguez-Quiñones ("Rodríguez") in

diversity in the Puerto Rico federal district court. The case

arises from the rape and robbery of Rodríguez on April 28, 2000, at

Clínica Las Américas ("Clínica")--a multi-condominium-unit medical

clinic where she worked as a clinical psychologist--in Hato Rey,

Puerto Rico. The defendants were Clínica itself and a group--the

"office 410 defendants"--composed of the owners of the office in

which Rodríguez worked: Dr. Jorge L. Jiménez Rivera ("Jiménez"),

Dr. Oscar A. Ruiz Locomba ("Ruiz"), and a partnership named Jiménez

& Ruiz, S.E.

Clínica operates a five-story office building containing

about 40 health-care-related offices. The health-care providers

include doctors who own condominium office units in the building as

well as doctors who rent office space from the owners. Clínica

also has multi-story parking garage next to the medical building,

a ground-level parking lot, and grounds. The building is governed

by a board of directors, whose members are condominium unit owners,

as well as by an Executive Committee. 

Jiménez and Ruiz (through their partnership) were the

owners of office 410 on the fourth floor of Clínica in which they

ran a psychiatry and psychology practice. Several other doctors

paid to use space in the office for certain hours. Within office

410, a main door (used by patients) led from the Clínica fourth-
-3-

floor hallway into the waiting area. In the waiting area, an

intermediate door gave access to the "back office" area containing

individual rooms for the doctors and a receptionist’s area; a

window in the waiting area looked through to the receptionist's

area.

Rodríguez had a lease with Jiménez and Ruiz allowing her

to use one of the doctors' offices in office 410 for 20 hours per

week--including 8 a.m. to 6 p.m. on Fridays--for her clinical

therapy practice. On Friday afternoon, April 28, 2000, Rodríguez

was working alone in office 410; no other doctors were present and

the secretary had already left. Between 5:00 and 5:15 p.m., two

young men (one with a glassy-eyed look) entered the office 410

waiting area in search of a physician. Rodríguez told them that

there were no doctors available and, after a few minutes, they

left. Concerned, Rodríguez attempted (without success) to contact

Clínica security by calling the building's administrative office.

After 5:30 p.m., while Rodríguez was occupied with a

young patient, the two men returned twice. On the second occasion,

shortly after 6:00 p.m., the two men entered the waiting area and

robbed the patient’s mother. They then proceeded into the back

area where Rodríguez and the patient were in Rodríguez’ office,

unsuccessfully searched the back office area for cash, and

eventually raped and robbed Rodríguez. The attack caused Rodríguez

to suffer such trauma that she was unable to continue as a clinical
-4-

psychologist in Puerto Rico and moved to New York where she found

more modest employment.

Rodríguez filed suit in the district court in Puerto

Rico, claiming that Clínica and the office 410 defendants were

negligent in providing security in the Clínica building and office

410, respectively. After a seven-day trial the jury found the

defendants negligent and found also that there was no "comparative

negligence" by Rodríguez. The jury awarded Rodríguez $2 million in

economic damages and $1.5 million for emotional and physical

injury, assigning 60 percent responsibility to Clínica and 40

percent responsibility to the office 410 defendants.

The defendants filed motions for judgment as a matter of

law and for a new trial or remittitur. Fed. R. Civ. P. 50, 59.

They claimed (among other things) that there was insufficient

evidence of their negligence, that the jury's refusal to find

comparative negligence was mistaken, and that the award of economic

damages was excessive. The trial court denied all motions save

that, by remittitur, it reduced economic damages to $877,481.

The office 410 defendants (but not Clínica) now appeal.

Denials of motions for judgment as a matter of law are reviewed de

novo. The evidence and credibility issues are considered in the

light most favorable to the verdict and we may reverse only if a

reasonable jury could not have reached such a verdict. Tapalian v.

Tusino, 377 F.3d 1, 5 (1st Cir. 2004); Trull v. Volkswagen of Am.,
-5-

Inc., 320 F.3d 1, 7-8 (1st Cir. 2002). Denial of a motion for a

new trial is ordinarily overturned only to prevent "a miscarriage

of justice." Trull, 320 F.3d at 8.

The appellants’ main attack is based on a supposed lack

of a duty of care and insufficient evidence of negligence on their

part. The pertinent evidence showed Clínica was located in a highcrime area within San Juan and that there were a good number of

cash transactions in the offices. The evidence also showed that

numerous entrances led into the building and that security-guard

coverage was limited. No security cameras were used as of April

28, 2000, and Clínica had not implemented a number of security

recommendations that had been made to its board.

Office 410 was the last office at the end of one of the

wings; its entrance was about 15 to 20 feet from an exit to a

stairwell and freight elevator that led down to a lateral door

(open until late at night) that let out near the external parking

lot. About 10 percent of the patients in the office paid cash

which was given to the office secretary and placed in envelopes in

a drawer in the receptionist area. Office 410 also had samples of

pharmaceuticals in an unlocked cabinet in one of the interior

offices.

The only security in place in office 410 consisted of the

locks on the main door and the door between the waiting room and

the back office area. There was no electronic locking system,
-6-

"buzzer" entry system, or security camera. The regular practice

was to leave the door to the hallway open at all times when there

were people in the office. The secretaries regularly left the

office at 5:00 or 5:30 p.m., frequently leaving one or more doctors

alone in the evening. No instructions were given to the employees

or tenants about locking the door.

There was mixed evidence as to Jiménez' and Ruiz'

awareness of prior incidents of criminal conduct at Clínica within

the two years preceding the rape. These incidents included a

break-in during July 1998 at the building administration offices

during which petty cash was stolen; an armed robbery in March 1999

in the parking garage; and an incident in November 1999 during

which five offices on the third, fourth, and fifth floors were

burglarized.

Jiménez and Ruiz denied knowing about any of these

incidents prior to the litigation. Nevertheless, there was

documentary evidence that Ruiz was on the Clínica board when the

break-in occurred in Clínica’s administrative office. Jiménez was

a member of the board in 1998-1999, and was secretary from 1999 to

2002 (and was part of the executive committee), a period

encompassing both the garage robbery and the burglary of five

offices.

Puerto Rico's Civil Code imposes liability for an "act or

omission" that “causes damages to another through fault or
-7-

negligence," article 1802, 31 P.R. Laws Ann. § 5141 (1990); and

"fault or negligence" may be based on "the omission of the steps

which may be required by the character of the obligation and which

may pertain to the circumstances of the persons, time, and place,"

article 1057, 31 P.R. Laws Ann. § 3021 (1990). See Coyne v. Taber

Partners I, 53 F.3d 454, 458 (1st Cir. 1995); Rivera Perez v. Cruz

Corchado, 19 P.R. Offic. Trans. 10, 21 (1987). In the case of an

omission, the defendant must have been under a duty to act--here,

a duty to "provide security commensurate with the circumstances

attendant to their operations." Coyne, 53 F.3d at 458.

Jiménez and Ruiz argue that Puerto Rico law "does not

recognize or impose upon owners and lessors of office buildings a

general legal obligation to provide heightened security." They

rely upon cases like Jacob v. Eagle Star Insurance Co., 640 F.

Supp. 117, 118 (D.P.R. 1986), which stated that "[o]rdinarily, a

person is not responsible in tort for criminal conduct of third

parties," and Estremera v. Inmobiliaria Rac, Inc., 9 P.R. Offic.

Trans. 1150, 1154 (1980), which said that violence is "primarily a

problem of public safety and a responsibility of the State," and

continued:

[C]ontracting parties cannot be held liable

for the occurrence of a crime within their

company's premises, unless the same are of a

nature that demand a wider scope of protection

and security than can be supplied by lawenforcement agencies.
-8-

However, Elba A.B.M. v. Univ. of P.R., 25 P.R. Offic.

Trans. 294, 125 D.P.R. 294, 299 (1990), did impose liability on a

university for a criminal’s attack on a student, equating the

school to hotels, schools and hospitals which provide services of

an "essential nature." Accord, Estremera, 9 Offic. Trans. at 1154.

The court in Elba also stressed the vulnerable nature of the

student population, the school’s location in a high-crime area, and

its operation as an enclave which local police did not ordinarily

enter. 25 P.R. Offic. Trans. 294, 125 D.P.R. at 311, 315-18.

Similarly, the court in J.A.D.M. v. Plaza Carolina

Shopping Mall, 132 D.P.R. 785, 791, 1993 P.R.-Eng. 840023 (1993),

imposed a duty to provide security on large shopping malls. It

noted that the variety of services offered in such centers–-by

government offices (e.g., post offices and utility offices),

commercial enterprises, and entertainment establishments--made them

like a "public square[]" and thus meant they provided essential

services. Id. The decision said that the "duty to provide

adequate and reasonable security" is based on both "the nature of

the activity conducted . . . and on the foreseeability of criminal

activity." Id. at 801.

Applying these criteria to the case at hand, it is easy

to conclude that Clínica did have a duty to provide security. But

the harder question is whether the Puerto Rico courts would impose

on Jiménez and Ruiz a duty to provide security in office 410 to
-9-

protect their part-time physician tenants. On the one hand, the

individual Clínica offices, like the building itself, are within a

high-crime area; cash transactions occur within the building; and

persons can freely enter the main building and then proceed to

individual offices where they are not visible to such few security

guards as may patrol the building and garage. Enhanced danger is

certainly foreseeable.

On the other hand, the Puerto Rico Supreme Court has

shown evident reluctance to create duties disproportionate to the

ability of business to protect against dangers of wrongdoing by

third parties. See J.A.D.M., 132 D.P.R. at 799, 1993 P.R.-Eng.

840023 (noting that imposing liability too easily would mean that

“every store or warehouse would have to be policed by the owner”);

cf. Jacobs, 640 F. Supp. at 119 (taxi operator is not liable for

criminal attacks on passengers). Yet, despite these hesitations,

the Puerto Rico courts have not suggested that small businesses are

automatically exempt from providing reasonable protection against

known dangers, whether by warnings, security features or otherwise.

All we can say is that the Commonwealth courts have not

clearly drawn a line cutting off liability. While the Puerto Rican

courts may well pause before requiring every small business to

provide a security guard, the duties sought to be imposed in this

case are far more moderate. The appellants here operated a small

indoor facility and could easily have improved security at modest
-10-

expense--here, by installing a security camera and buzzer system

and by changing some of its office practices. Indeed, there is no

indication that Rodríguez was even warned of crimes committed

earlier on the premises.

The jury in this case was instructed that an owner or

lessor has no duty to protect tenants from criminal acts unless

they are foreseeable; that institutions providing “essential

services” have a heightened responsibility to provide security;

that there is no duty to protect against the general level of

criminality that exists in society; and that the defendants in this

case had to maintain “reasonable security measures for the

protection of [their] guests and patients.” We are not prepared to

say that this summary of Puerto Rico law is mistaken.

The office 410 defendants say that the kind of violent

attack that occurred was not foreseeable and that the earlier

incidents involved petty property theft or were “outside” in the

garage. In fact, the perpetrators in this case sought cash in the

back area of the office and found none before turning on Rodríguez

herself. Further, an armed robbery--an episode with an obvious

potential for great harm--had occurred in the attached garage

building. Despite defendants' denials, the jury could have

concluded from the evidence already described that the defendants'

connections with the building would have given them some knowledge

of the prior episodes.
-11-

As for negligence, the parties stipulated that the cost

of an electronic lock would have been $285; of a buzzer $45; and of

a security camera $78, and that these devices could have been

installed at Office 410. From this evidence, a jury could have

rationally concluded that such relatively low-cost measures, along

with changing office practice to locking the front door (and

requiring patients to ring a buzzer) in the late afternoon when no

one was at the front desk, were required for adequate security and

that these measures would have prevented the rape.

The jury declined to find that Rodríguez was

comparatively negligent, leaving the defendants liable for the

full damages. See 31 P.R. Laws Ann. § 5141; Mejias-Quiros v.

Maxxam Prop. Corp., 108 F.3d 425, 427 (1st Cir. 1997). Jiménez and

Ruiz say this was error because--for example--Rodríguez was already

suspicious of the assailants and did no more than seek to call

security and then failed to lock the outer door even though her

last patient had arrived. In deciding what a reasonable person

could do, a jury’s latitude is considerable and we do not think

that comparative negligence was present as a matter of law.

Finally, the office 410 defendants say that the trial

court's reduction of economic damages from $2 million to about

$877,000 was inadequate. At trial each side had by agreement

submitted expert reports on lost income in lieu of testimony.

Rodríguez' expert estimated an annual "maximum potential gross
1The $332,000 figure was derived by reducing the annual

estimated gross income in each year by both (1) the estimated

expenses that would have been incurred and (2) the net income that

Rodríguez was expected to earn in her new job, and then discounting

the projected annual differentials to present value.

-12-

income" for her of $165,966 based on an estimated number of

sessions with patients and other expected work (e.g., teaching);

but in his damage calculations, the expert employed a figure of

$110,000 offered by Rodríguez herself, describing it as

"conservative." This led the expert to support at trial a total

net figure for economic damages of $332,000.1

The district judge deemed the jury’s $2 million figure

excessive but did not reduce the damages back to $332,000.

Instead, the district court adopted $877,000 as the figure needed

to avoid a new trial. The judge reached this figure by

substituting, in the expert's earlier computation, the expert’s

original estimate of annual gross income for Rodríguez (about

$166,000) in place of Rodríguez' own estimate ($110,000). The

appellants say that the expert’s ultimate $332,000 figure

(predicated on the $110,000 estimated income) should have capped

Rodríguez’ economic recovery. 

Where the jury exceeds a rationally supportable figure,

the judge’s remittitur figure must be within the range rationally

supported by evidence. See Wagenmann v. Adams, 829 F.2d 196, 215

(1st Cir. 1987); Segal v. Gilbert Color Sys., 746 F.2d 78, 81 (1st

Cir. 1984). We conclude that the $877,000 figure is supported by
-13-

the record. A fact-finder might well choose to hold Rodríguez to

her own horseback estimate of $110,000 but the evidence contained

the fully explained $166,000 figure as well as the computation

needed to derive the $877,000 total.

Affirmed.