United States Court of Appeals For the First Circuit

No. 18-2061

LAURA BAUM-HOLLAND; SARAH HOLLAND; EMILY HOLLAND; JOSEPH HOLLAND,

Plaintiffs, Appellants,

v.

HILTON EL CON MANAGEMENT, LLC; HILTON EL CON OPERATOR, LLC; LXR LUXURY RESORTS, INC.; EL CONQUISTADOR PARTNERSHIP L.P., S.E., d/b/a El Conquistador Resort; ZURICH AMERICAN INSURANCE COMPANY,

Defendants, Appellees,

EL CONQUISTADOR GOLF RESORT & CASINO AND LAS CASITAS RESORT, a Waldorf Astoria Resort; HILTON INC.; LA CASA DEL MAR, INC.; INSURANCE COMPANY ABC; JOHN DOE 1; JOHN DOE 2; JOHN DOE 3,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

Torruella, Thompson, and Kayatta, Circuit Judges.

Hatuey A. Infante-Castellanos, with whom Hatuey Infante Law Offices, P.S.C., Freddie Pérez-González, Freddie Pérez-González & Assoc., P.S.C., Toby B. Fullmer, and Toby B. Fullmer, L.L.C. were on brief, for appellants. Iván M. Fernández, with whom Law Office of Iván M. Fernández was on brief, for appellee Zurich American Insurance Company. Francisco E. Colón-Ramírez, with whom Colón Ramírez LLC was on brief, for appellees Hilton El Con Management, LLC, Hilton El Con Operator, LLC, and El Conquistador Partnership L.P., S.E.

June 30, 2020

-2- TORRUELLA, Circuit Judge. This diversity case arises

from the unfortunate death of Dr. George Holland ("Dr. Holland")

while he was vacationing at El Conquistador Resort, a hotel located

in Fajardo, Puerto Rico. Dr. Holland's wife, Laura Baum-Holland

("Baum-Holland"),1 and their children, Sarah, Emily, and Joseph

Holland (collectively "Appellants") asserted a tort claim under

Article 1802 of the Puerto Rico Civil Code against El Conquistador

Partnership L.P., S.E. d/b/a El Conquistador Resort; its insurer,

Zurich American Insurance Company; Hilton El Con Management LLC;

Hilton El Con Operator LLC (collectively "Defendants-Appellees");

and LXR Luxury Resorts,2 stemming from Dr. Holland's death while

he was snorkeling close to Palomino, an island near the hotel.3

Defendants-Appellees moved for summary judgment, which the

district court granted, dismissing the complaint. Because we find

that there is insufficient evidence in the record to establish the

causation element of Appellants' tort claim, we affirm.

1 Baum-Holland is an obstetrician and gynecologist. 2 Although LXR Luxury Resorts is also a named defendant, it is a trademark that El Conquistador Partnership L.P., S.E. licenses from LXR Holdco, Inc., not an entity that may be sued. 3 The operative complaint also included Casa del Mar, Inc. as a defendant but, as we will later explain, it is not a party on appeal.

-3- I. Background

A. Factual Background

On December 26, 2012, Dr. Holland, Appellants, and some

other relatives and friends arrived in Puerto Rico to celebrate a

birthday and New Year's Eve. They stayed at El Conquistador

Resort, a luxury hotel located on the coast of Fajardo,

Puerto Rico. At the relevant time, the hotel was owned and

operated by El Conquistador Partnership L.P., S.E. d/b/a

El Conquistador Resort. El Conquistador Resort provides ferry

transportation to a nearby island, Palomino, whose facilities are

managed by the hotel.

On January 1, 2013, Dr. Holland, his family, and some

friends, including Lawrence and Lisa Jassin,4 used the hotel's

transportation services to get to Palomino, where they planned to

spend the day at the beach. Dr. Holland was obese and suffered

from untreated hypertension.

Dr. Holland and his family rented snorkeling gear from

Casa Del Mar, Inc. ("Casa del Mar"), a concession stand on Palomino

Island.5 They rented four masks and four sets of fins. Casa del

Mar had signs indicating the availability of flotation belts.

4 The Jassins arrived in Puerto Rico on December 31, 2012. 5 The hotel shared in the profits as a result of its Concession Agreement with Casa del Mar.

-4- That day, it had approximately eight to fifteen flotation belts

that were in view to the public and available for rental for five

dollars each. Dr. Holland did not rent any flotation belts. Casa

del Mar rented two belts later in the day to other patrons. Other

than the flotation belts, the concession stand had no other safety

equipment.

Customers renting equipment from Casa del Mar were

required to read and sign a release form. Dr. Holland signed the

document before taking the equipment. The document stated:

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 subsidiaries, and it's [sic] employees. 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 equipment 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.

-5- After renting the snorkeling equipment, Dr. Holland and

his party set out to snorkel between Palomino and Palominito, a

smaller island off the coast of Palomino. Dr. Holland had

snorkeled before. According to Mrs. Jassin, the water was choppy,

and there were strong currents that made them drift to the side,

but "[they] were okay" and did not notice any conditions that would

warrant them to change their plans and turn back to Palomino.6

Dr. Holland was swimming next to Mrs. Jassin, about twelve feet to

her left. At some point during the swim, Dr. Holland directed Ben

-- the Jassins's son -- to swim to the island ahead of him

(Palominito) to get Dr. Holland's son, Joseph. Ben was able to

do as instructed. Approximately halfway through his swim,

Dr. Holland stopped swimming and stared at Palominito. At that

time, according to Mrs. Jassin, Dr. Holland was treading water,

not thrashing, and appeared calm. He did not appear to be

drowning. Mrs. Jassin asked Dr. Holland if he was okay, but he

did not respond.

After noticing his unresponsiveness, the Jassins

approached Dr. Holland. Mrs. Jassin had lifeguard training, and

was trained in cardiopulmonary resuscitation ("CPR") and the use

6 Mrs. Jassin agreed that "there certainly wasn't anything in the water that was overcoming any swimmer and causing them to go under" and "[n]o one was getting tossed in the waves or getting thrown under water, like crashing waves."

-6- of automated external defibrillators ("AED"). Shortly after

Mrs. Jassin reached him, Dr. Holland began to foam at the mouth

and slumped in the water. The Jassins held Dr. Holland, which

prevented his head from going under water, and yelled for help.

Mrs. Jassin believed that Dr. Holland was having a heart attack.

Within five minutes, Edward Valentín, an employee of

Palomino Water Sports,7 arrived on a jet ski to aid Dr. Holland.

Mr. Valentín had previously worked in search and rescue missions

with the State Emergency Management Service in Puerto Rico and was

trained in life rescue techniques. Mr. Valentín signaled to the

shore for more assistance. At that point, John Rosado, co-owner

of Palomino Water Sports, and José Caraballo, another of his

employees who is also a certified lifeguard, got on a jet ski and

headed towards Dr. Holland. The group tried to get Dr. Holland

on the jet ski to no avail. At some point during their attempt,

Dr. Holland's head submerged.8

Then, a Hobie Cat arrived with people from Dr. Holland's

group, 9 and Dr. Holland was placed on it. Once on board,

7 Palomino Water Sports is another concession stand that rents jet skis, kayaks, paddle boards, sailboats, Hobie Cats (small sailing catamarans), beach toys, and other water sport equipment. 8 This was the first time that anyone saw Dr. Holland's head go under water. 9 Baum-Holland's sister-in-law and nephew, as well as Joseph

-7- Baum-Holland's sister-in-law, who is a physician, performed CPR on

Dr. Holland.10 Baum-Holland's brother, Dr. Richard Baum,11 who had

heard that Dr. Holland was in trouble, approached the Hobie Cat on

a jet ski and got on board. Once on board, he also helped with

the CPR, which was provided to Dr. Holland continuously until the

Hobie Cat arrived at the shore of Palomino within two to ten

minutes.12 According to Dr. Baum, Dr. Holland's pulse remained

faint and his breathing shallow until he was taken back to

Palomino, where Dr. Holland's respiration and pulse at some point

could no longer be detected.

Once back at Palomino, Dr. Holland was laid on the sand

and continued to receive CPR. Other hotel guests assisted

Dr. Holland. Dr. Melinda Armacost -- a dentist with CPR

certification -- and an ER nurse began chest compressions and mouth

to mouth respiration. While receiving CPR, Dr. Holland expelled

liquid (water and "some kind of chunk content"). Dr. John Ruge,

Holland were on the Hobie Cat. 10 Baum-Holland's sister-in-law, Dr. Kathe Baum, is an interventional radiologist. 11 Dr. Richard Baum is also an interventional radiologist. 12 While Mr. Rosado testified that it took the Hobie Cat between two to three minutes to get to the shore, Mrs. Jassin testified that "[i]t seemed like forever[,] . . . maybe ten minutes, but it seemed like a long time because [they] were worried about [Dr. Holland]."

-8- a neurosurgeon with twenty-seven years of experience, joined the

group in aiding Dr. Holland shortly thereafter and performed CPR.

Both Dr. Armacost and Dr. Ruge stated that, while lying on the

sand, Dr. Holland was "blue," "cyanotic," "pulseless, breathless,

[and] unresponsive."13

A hotel employee brought an AED to the scene 14 and

Dr. Ruge applied it on Dr. Holland,15 but the AED did not register

a pulse from Dr. Holland. 16 Dr. Ruge also administered an

epinephrine injection (EpiPen) to Dr. Holland's heart.

Dr. Holland was then placed on a stretcher and driven to

the dock on a golf cart. Dr. Ruge stayed with Dr. Holland on his

way to the dock. Once at the dock, Dr. Holland was transported

back to Fajardo on a U.S. Department of Homeland Security boat.17

13 Dr. Ruge thought Dr. Holland was already dead when he first saw him. 14 The employee also brought a small oxygen tank with a mask. 15 Dr. Armacost testified that it took around ten minutes to get the AED to Dr. Holland's location. Baum-Holland testified that it took a "long time," although she does not claim that it took more than ten minutes. This discrepancy, however, does not create an issue of material fact. 16 Dr. Armacost did not detect a pulse on Dr. Holland either. 17 According to Mr. Rosado, Dr. Holland was transported back to Fajardo on a Homeland Security boat instead of on the hotel ferry because the former was faster than the latter. Approximately thirty-five to forty minutes transpired between the time Dr. Holland returned to Palomino on the Hobie Cat and when he was

-9- He continued to receive CPR during the trip back to Fajardo, where

an ambulance was awaiting on shore. Dr. Holland was taken to a

hospital in Fajardo, where he was pronounced dead upon arrival.

Dr. Francisco Cortés, a forensic pathologist who worked

with the Puerto Rico Institute of Forensic Sciences, performed

Dr. Holland's autopsy and prepared an autopsy report. The report

noted that Dr. Holland was 5'10", was "obese," had an enlarged

heart, enlarged and fatty liver, atherosclerosis, and presented

pulmonary and sphenoid edema. The report listed Dr. Holland's

cause of death as "[a]sphyxia by drowning" with

"[a]rteriosclerotic coronary disease" as a "contributing factor."

During his deposition, Dr. Cortés explained the

information that was available to him at the time of the autopsy,

the autopsy process, and his findings. He stated that, on

January 2, 2013, an employee from the Puerto Rico Institute of

Forensic Sciences interviewed Baum-Holland, who provided

information about Dr. Holland's medical history. According to the

transcript of that interview, Baum-Holland reported that

Dr. Holland had high cholesterol levels and suffered from

hypertension but was not treated for either of these conditions.

placed on the Homeland Security boat.

-10- Dr. Cortés further explained that he performed

Dr. Holland's autopsy on January 4, 2013. That day, Dr. Cortés

filled out a form for histology testing of heart, lung, and liver

tissue from Dr. Holland. In the "comment" section of that form,

Dr. Cortés wrote, "[w]hile he was snorkeling at the beach, he

suffered an infarct and died." According to Dr. Cortés, in writing

that statement, he "took into consideration that [Dr. Holland] was

snorkeling, . . . was obese, and . . . had untreated hypertension."

Similarly, in a form he submitted requesting toxicological

analysis of Dr. Holland's "blood; nasal swab; and diffused humor,"

Dr. Cortés identified Dr. Holland's "manner of death" as "pending"

and his "class" of death as "cardiac." In this same form,

Dr. Cortés wrote in the "circumstances of death" section that

"[w]hile [Dr. Holland] was snorkeling at the beach, he had an

infarct and died."

During his deposition, Dr. Cortés also expanded on his

findings from the autopsy report. He testified that "coloration

on [Dr. Holland's] face" "could be indicative of arrhythmia" or

"postmortem changes." He also testified that fluid in the

sphenoid sinus, such as that found during Dr. Holland's autopsy,

is typically found in people who have drowned, and that Dr. Holland

had to have been alive when the liquid entered his sphenoid sinuses

in order for him to have "breathe[d]" in the water.

-11- In addition, Dr. Cortés explained that the "congested

mucosa" found in Dr. Holland's "epiglottis, trachea and larynx,"

was "evidence of a lack of oxygenation," which can be found in

different infarct cases as well as some drowning cases. He also

testified that "pulmonary edema" and "foaming at the mouth," both

exhibited by Dr. Holland, can be found in a person who has suffered

a heart failure or someone who has drowned.

Dr. Cortés also testified that Dr. Holland's "spleen

[was] increased in size," his lungs were "very increased in

weight," and he had a "markedly enlarged" and "fatty liver."

In explaining the autopsy report's finding regarding

Dr. Holland's heart, Dr. Cortés testified that Dr. Holland's

untreated "chronic hypertension" led him to have a "considerably"

larger than normal heart (weighting 560 grams), which could cause

arrhythmias. The heart also had "thickening of the left [blood]

ventricle" and "atherosclerotic changes." In sum, Dr. Cortés

characterized Dr. Holland's heart as a "sick heart."

Lastly, although in the autopsy report Dr. Cortés listed

"drowning" as Dr. Holland's "cause of death" and

"[a]rteriosclerotic coronary disease" as a contributing factor,

Dr. Cortés clarified in his deposition that, "by drawing the

conclusion of drowning, [he] did not rule out a heart attack"

"preceding the aspiration of the fluid in the sinus." In fact,

-12- when asked to comment on the opinion from a cardiologist consulted

by El Conquistador to the effect that Dr. Holland suffered a heart

attack prior to aspirating water and drowning, 18 Dr. Cortés

responded that he could not "rule that out, because that's probably

what happened."

Appellants hired Dr. Miguel Canals as an expert in

oceanography. Dr. Canals wrote a report on the oceanographic

conditions on January 1st and was then deposed.

At his deposition, Dr. Canals acknowledged that, on the

morning of January 1, 2013, the National Weather Service ("NWS")

issued a bulletin stating that "dangerous surf zone conditions"

were expected for Puerto Rico and the Northern U.S. Virgin Islands.

Dr. Canals testified that, although the NWS estimated that waves

18 Specifically, Dr. Cortés was told that the cardiologist's opinion was as follows:

[Dr. Holland] had a severe left ventricular hypertrophy 2.4 centimeters, normal being less than one centimeter. He went into heart failure most likely due to elevating his heart rate and blood pressure from snorkeling, and then developed diastolic dysfunction of the heart muscle, leading to pulmonary edema. Pulmonary edema, and foaming at the mouth, developed before he was lifted onto the catamaran, and before [the Jassins] saw any evidence of Dr. Holland's submerging below the water. Going into pulmonary edema certainly could affect his responsiveness and cause an ischemic response. With ischemia, or lack of blood and oxygen, he then developed a fatal arrhythmia and died. Hypertension, severe left ventricular hypertrophy, and exercise such as snorkeling explained his death.

-13- were breaking in the Atlantic Ocean between ten and fourteen feet

on January 1, 2013, his reconstruction of the oceanographic

conditions for the area where Dr. Holland was snorkeling indicated

that the waves between Palomino and Palominito were breaking at

only one to two feet. Dr. Canals explained that this discrepancy

was due to the Palomino area being a "sheltered environment"

surrounded by reefs and islands to the north of Palomino that

dissipate wave energy. He found that the conditions in the area

where Dr. Holland was snorkeling were "drastically different" from

the conditions described in the NWS bulletin because "the

[bulletin] does not attempt to estimate the wave conditions at

locations which are not exposed." The bulletin, in Dr. Canals's

opinion, "is meant for all of Puerto Rico" and does not analyze or

attempt to forecast the conditions at the exact location where

Dr. Holland was snorkeling. Dr. Canals determined that the winds

in the area where Dr. Holland was snorkeling should have been

between five and twelve miles per hour, and that the current speeds

near Palomino were somewhere between 0.6 to 0.9 knots.

B. Procedural History

On November 28, 2014, Appellants filed the initial

complaint. They amended their complaint three times, the last of

which they filed on January 9, 2017. On December 15, 2017,

Defendants-Appellees moved for summary judgment. On January 22,

-14- 2018, Appellants opposed summary judgment. Defendants-Appellees

replied on February 10, 2018.19

On September 30, 2018, the district court issued an

opinion and order granting Defendants-Appellees' motion for

summary judgment in its entirety. See Baum-Holland v.

El Conquistador P'ship,

(D.P.R. 2018). As an

initial matter, the district court found that Hilton El Con

Management LLC and Hilton El Con Operator LLC did not own, operate,

or provide services to the hotel during the relevant time period.

It also found that LXR Luxury Resorts is not an entity, but rather

a trademark owned by LXR Holdco, Inc. that El Conquistador

Partnership L.P., S.E. used as a licensee; and that in any event,

LXR Luxury Resorts did not own, operate, or provide services to

the hotel during the relevant time period. Appellants do not

challenge those findings or otherwise argue that summary judgment

should not have been entered as to those specific defendants.

Accordingly, Appellants have waived any challenge to the dismissal

of the complaint as to those defendants. See United States v.

Zannino,

(1st Cir. 1990). Our analysis on appeal

19 Casa del Mar also filed a motion for summary judgment, which Appellants opposed. Soon thereafter, and before the district court could rule on Casa del Mar's motion, Appellants settled all their claims against Casa del Mar and the district court entered partial judgment dismissing all claims against it. Casa del Mar is not a party on appeal.

-15- is thus limited to Appellants' claims against El Conquistador

Partnership L.P., S.E. d/b/a El Conquistador Resort and its

insurance company, Zurich American Insurance Company (collectively

"El Conquistador").

The district court granted summary judgment in favor of

El Conquistador on the grounds that Appellants had failed to meet

their burden of proof as to the breach of a duty of care and

causation elements of their negligence claim. The court rejected

Appellants' arguments that El Conquistador breached its duty of

care to Dr. Holland by failing to warn him of the allegedly

dangerous sea conditions, by not providing timely and appropriate

aid, and by failing to provide safety devices such as flotation

belts or vests, reflective mirrors, and whistles.

As to the alleged failure to warn, the court held that

Appellants did not "establish a real hazardous condition at sea"

about which El Conquistador should have warned Dr. Holland.

Specifically, the court found that the NWS bulletin on which

Appellants relied was not probative of their claim because the

evidence in the record showed that the conditions in the bulletin

were not consistent with the conditions in the specific area where

Dr. Holland was swimming (the stretch of water between Palomino

and Palominito), which is a "sheltered environment" due to "a

barrier of islands and reefs." Because foreseeability is

-16- necessary to establish that a defendant breached its duty of care,

the court concluded that Appellants' "fail[ure] to provide

evidence that made foreseeable that Dr. Holland's event was bound

to occur" defeated their contention that El Conquistador had

breached its duty by failing to warn Dr. Holland. The court

further determined that Dr. Holland knowingly endangered himself

and assumed the risk when he decided to snorkel despite having

knowledge of his health conditions.

Regarding the alleged breach of a duty of care by failing

to provide safety devices such as flotation belts, reflective

mirrors, or whistles, the court concluded that Appellants had

failed to establish that El Conquistador had a duty to provide

such safety devices. Furthermore, the court found that although

flotation belts were available for rental at Casa del Mar,

Dr. Holland chose not to rent one.

In rejecting Appellants' argument that El Conquistador

breached its duty of care to Dr. Holland by failing to provide

timely and appropriate aid, the court found that the immediate aid

provided by Mrs. Jassin, who had lifeguard and CPR training and

who was only twelve feet away from Dr. Holland, was "much more

effective" than any help that could have been provided by

El Conquistador or an on-duty lifeguard given that Dr. Holland was

approximately 250 meters from the shore when the incident occurred.

-17- Furthermore, the court found that Dr. Holland continuously

received CPR, and that El Conquistador had an AED available, which

a doctor with twenty-seven years of experience used to try to save

him.

As to the element of causation, the district court held

that Appellants had failed to establish causation because they did

not submit evidence from which a reasonable jury could conclude

that "Dr. Holland would have survived if first aid [had been]

provided by El Conquistador instead of Mrs. Jassin." Furthermore,

the court noted that Dr. Holland received CPR from various doctors,

that an AED was also used on him by a doctor, and that Appellants

had failed to present evidence that these "efforts were deficient."

Finally, the district court determined that the release

form that Dr. Holland signed when he rented the snorkeling gear

from Casa del Mar was enforceable and "released El Conquistador

from liability regarding the snorkeling activity [Dr. Holland] was

engaging in prior to his demise." Accordingly, the court

concluded that the release barred Appellants' claims.

Appellants timely appealed. They challenge the dismissal

of their Article 1802 tort claim on the merits as well as the

district court's finding that the release form signed by

Dr. Holland barred their tort claim.

-18- II. Discussion

A. Standard of Review

We review a district court's grant of summary judgment

de novo, construing the record in the light most favorable to the

nonmovant and resolving all reasonable inferences in that party's

favor. Ocasio-Hernández v. Fortuño-Burset,

(1st

Cir. 2015); Mesnick v. Gen. Elec. Co.,

(1st Cir.

1991) (quoting Griggs-Ryan v. Smith,

(1st Cir.

1990)). Summary judgment is appropriate when the moving party

shows that "there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law." Fed.

R. Civ. P. 56(a). A genuine dispute is "one that must be decided

at trial because the evidence, viewed in the light most flattering

to the nonmovant, would permit a rational factfinder to resolve

the issue in favor of either party." Medina-Muñoz v. R.J. Reynolds

Tobacco Co.,

(1st Cir. 1990) (citations omitted).

"Facts are material when they have the 'potential to affect the

outcome of the suit under the applicable law.'" Cherkaoui v. City

of Quincy,

(1st Cir. 2017) (quoting Sánchez v.

Alvarado,

(1st Cir. 1996)). The party opposing

summary judgment "bears 'the burden of producing specific facts

sufficient to deflect the swing of the summary judgment scythe.'"

Theidon v. Harvard Univ.,

(1st Cir. 2020)

-19- (quoting Mulvihill v. Top-Flite Golf Co.,

(1st

Cir. 2003)). "For this purpose, [it] cannot rely on 'conclusory

allegations, improbable inferences, acrimonious invective, or rank

speculation.'"

(quoting Ahern v. Shinseki,

(1st Cir. 2010)).

B. Applicable Law

Because this is a diversity case, we apply Puerto Rico's

substantive law. See Suero-Algarín v. CMT Hosp. HIMA San Pablo

Caguas,

, 39 (1st Cir. 2020) ("[F]ederal courts sitting

in diversity apply state substantive law." (quoting Gasperini v.

Ctr. for Humanities, Inc.,

(1996))). Appellants

filed their suit under Article 1802 of the Puerto Rico Civil Code

-- Puerto Rico's general tort statute. Article 1802 provides that

"[a] person who by an act or omission causes damage to another

through fault or negligence shall be obliged to repair the damage

so done."

. It further provides

that "[c]oncurrent imprudence of the party aggrieved does not

exempt from liability, but entails a reduction of the indemnity."

"Negligence under Article 1802 is generally defined as

'the failure to exercise due diligence to avoid foreseeable

risks.'" Blomquist v. Horned Dorset Primavera, Inc.,

(1st Cir. 2019) (quoting Woods-Leber v. Hyatt Hotels

-20- of P.R., Inc.,

(1st Cir. 1997)). To recover on a

negligence-based tort claim pursuant to Article 1802, a plaintiff

must establish: "(1) a duty requiring the defendant to conform to

a certain standard of conduct, (2) a breach of that duty, (3) proof

of damage,[20] and (4) a causal connection between the damage and

the tortious conduct."

at 547 (quoting Woods-Leber,

). Because the parties do not dispute that Appellants meet

the third element of their Article 1802 claim, we focus on the

remaining elements.

The first element, a "duty requiring the defendant to

conform to a certain standard of conduct," is commonly known as a

"duty of care." It refers to an "obligation to anticipate and

take measures against a danger that is reasonably foreseeable."

Woods-Leber v. Hyatt Hotels of P.R., Inc.,

(D.P.R. 1996), aff'd, Woods-Leber,

. This duty of care

may arise: (1) by statute or regulation; (2) "as the result of a

special relationship between the parties that has arisen through

20 Some cases refer to this element as requiring proof of an "injury." See, e.g., Vázquez-Filippetti v. Banco Popular de P.R.,

(1st Cir. 2007); Irvine v. Murad Skin Research Labs., Inc.,

(1st Cir. 1999) (using "injuries/damages" interchangeably). The discrepancy is due to varying translations from Spanish of the word "daño" -- derived from the Spanish phrase, "[e]l que . . . causa daño a otro," included in the Spanish version of

. See 31 L.P.R.A. § 5141 (Spanish version).

-21- custom; or (3) as the result of a traditionally recognized duty of

care particular to the situation." De Jesús-Adorno v. Browning

Ferris Indus. of P.R., Inc.,

(1st Cir. 1998).

We have held that, under Puerto Rico law, hotels have a

"heightened duty of care towards their guests." Blomquist,

. In carrying out this duty of care, the hotel must

act as a "prudent and reasonable person under the circumstances."

(quoting Vázquez-Filippetti v. Banco Popular de P.R.,

(1st Cir. 2007)). However, hotels "are not absolute insurers

of their guests' well-being."

Rather, "even where [the hotel

has] a duty of care, the [c]ourt must still determine what degree

of care is required by considering the foreseeability of an injury,

the nature and magnitude of the injury, and what a reasonable and

prudent man would ha[ve] done under the same circumstances."

Woods-Leber,

.

Regarding the second element -- breach of a duty of

care -- because "a defendant only breaches [its] duty if [it] acted

(or failed to act) in a way that a reasonably prudent person would

foresee as creating undue risk," Vázquez-Filippetti,

, the plaintiff needs to demonstrate that the injury was

"reasonably foreseeable," Woods-Leber,

.

See Irvine v. Murad Skin Research Labs., Inc.,

, 321-

22 (1st Cir. 1999) (noting that "[n]ot all actions or omissions

-22- which result in injuries/damages will give rise to liability under

[A]rt. 1802"; rather, "liability will only arise if the damages

complained of were reasonably foreseeable to the defendant").

This inquiry is "case-specific and fact-dependent." Blomquist,

.

Although "the requirement of foreseeability is not

limited to requiring that the precise risk or consequences"

suffered by the plaintiff be foreseen, those damages "must [still]

fall within the general class of consequences that in a normal

person's experience flow from such an act or omission." Woods-

Leber,

(emphasis omitted) (quoting Pabón-

Escabí v. Axtmayer,

, 25 (1964), then citing Brau

del Toro, 1 Daños y Perjuicios Extracontractuales [Torts] 184–

185).

Under the fourth element of an Article 1802 claim, a

plaintiff must prove that the defendant's breach of its duty of

care was the proximate cause of the damage or injury suffered.

This causation analysis requires that two elements be met: (1) the

defendant's breach of its duty of care must be the actual cause of

the injury suffered by the plaintiff, and (2) the injury suffered

must have been reasonably foreseeable to the defendant.

See Vázquez-Filippetti,

n.6 (explaining how "[a]

defendant's actions may only be the proximate cause of a

-23- plaintiff's injuries if they in fact caused the injuries and the

defendant could have reasonably foreseen that the injuries (or

related harms) would result from his actions"); Tormos–Arroyo v.

Dep't of Educ. of P.R.,

(1996) (noting

that for purposes of Article 1802, there is a causal relationship

between an omission and an injury when the injury was reasonably

foreseeable and could have been avoided had the defendant performed

the omitted act). Foreseeability, in the context of causation,

cannot "be established through the simple fact that an accident

occurred." Vázquez-Filippetti,

. Instead, the

foreseeability inquiry in this context is one of "probabilities,"

and not mere "possibilities." See

. An intervening

cause, defined as "a cause of injury that 'comes into active

operation in producing the result after the actor's negligent act

or omission has occurred,'" Widow of Andino v. P.R. Water Res.

Auth.,

, 178 (1966), can break the chain of causality

if it is deemed to have been unforeseeable by the defendant.

See Malavé-Félix v. Volvo Car Corp.,

(1st Cir.

1991).

C. Analysis

To survive summary judgment, Appellants need to point to

sufficient evidence in the record from which a reasonable jury

-24- could rule in their favor as to each of the four elements of their

Article 1802 claim.

Appellants argue that El Conquistador breached three

different duties of care, which caused Dr. Holland's death by

drowning because of the ocean conditions on January 1, 2013, and

that there are several material facts in dispute as to

El Conquistador's breach of those duties, which make summary

judgment inappropriate.

First, Appellants argue that El Conquistador had a duty

to warn Dr. Holland about the ocean conditions on January 1st, and

that it breached that duty by allowing him to go in the water when,

instead, it "should have prohibited . . . Dr. Holland from engaging

in snorkeling or other water activities." To support that claim,

Appellants rely primarily on the NWS bulletin and Dr. Canals's

expert report and deposition testimony. According to Appellants,

there are material facts in dispute about the ocean conditions,

including the dangerousness of the currents, which bar summary

judgment.

Second, Appellants posit that El Conquistador had a duty

to aid Dr. Holland in such a moment of peril, and that it breached

this duty by not having: "a lifeguard on duty," the means to

quickly transport Dr. Holland to shore when he appeared to be in

distress, or an AED readily available when Dr. Holland was brought

-25- ashore to Palomino. Appellants further argue that Dr. Holland

received assistance and CPR from "Good Samaritan hotel guests"

rather than from hotel staff. According to Appellants, disputes

over whether El Conquistador provided effective and timely

assistance to Dr. Holland -- including whether Mrs. Jassin properly

substituted for an on-staff lifeguard -- ought to prevent the entry

of summary judgment.

Third, Appellants argue that El Conquistador also had a

duty to provide safety gear, such as "flotation devices" (i.e.,

flotation belts and snorkeling vests), whistles, and reflective

mirrors. According to Appellants, the parties dispute whether

El Conquistador breached this duty, specifically whether Casa del

Mar had "flotation devices available" on January 1st and whether

Dr. Holland "decided not to rent them."

In response, El Conquistador disputes that it either had

any of these three duties of care or that it breached them.

Furthermore, El Conquistador argues that, even assuming it had

these duties of care and that Appellants could prove breach,

summary judgment is nevertheless still appropriate because

Appellants cannot prove causation.

Regarding the alleged duty to warn, El Conquistador

first disputes the admissibility of both the NWS bulletin and

Dr. Canals's expert report. It argues that the NWS bulletin was

-26- not properly authenticated and that Dr. Canals's expert report was

"unsworn"; and therefore, both constitute inadmissible hearsay

evidence, which cannot be used to support Appellants' claim that

El Conquistador breached an alleged duty to warn. In the

alternative, El Conquistador argues that, even if admissible,

neither the NWS bulletin nor Dr. Canals's expert report support

Appellants' contention that it had a duty to warn Dr. Holland of

dangerous ocean conditions or that it breached such a duty.

Specifically, El Conquistador argues that the NWS bulletin is not

evidence that it was "put [] on notice" of dangerous conditions in

the area where Dr. Holland was snorkeling, between Palomino and

Palominito, because, as admitted by Appellants' own expert,

Dr. Canals, the bulletin applied to a "completely different

location[]." Appellees' Brief at 38. It argues that the evidence

in the record (including Dr. Canals's expert report and his

deposition testimony) shows that the conditions in the area between

Palomino and Palominito were, in Dr. Canals's words, "drastically

different" than those reported in the bulletin because that area

is surrounded by islands and reefs that create a sheltered

environment that reduces wave energy. It further argues that,

according to the evidence in the record, there were only "one to

two-foot waves" in the area where Dr. Holland was snorkeling, and

the winds were blowing at typical trade wind speeds. Finally,

-27- El Conquistador posits that both the duty-of-care and breach-of-

duty elements require that the danger alleged by the plaintiff be

reasonably foreseeable, but here, a drowning event was not

foreseeable because it was not likely to occur. In support of

that contention, El Conquistador argues that over one million

El Conquistador guests visited Palomino between 2008 and 2012 and

none of them drowned.

Concerning the alleged duty to aid, El Conquistador

argues that Appellants have failed to prove that it had a "legal

duty to provide lifeguards" or "rescue boats at Palomino," and

that El Conquistador provided Dr. Holland with an AED within

"several minutes" of the incident, and an experienced neurosurgeon

used the device on Dr. Holland.

El Conquistador also refutes Appellants' contention that

it breached a duty to provide safety gear. First, it denies having

such a duty, arguing that no "rule, law, regulation or standard"

requires that it provide either flotation devices or "distress

signaling devices" such as reflective mirrors or whistles. In

support of its contention, El Conquistador points to the deposition

testimony of Appellants' "own liability expert," Alberto Martí, a

certified scuba diver who owns a concession stand that rents out

snorkeling gear in San Juan, Puerto Rico. Mr. Martí testified

that the use of flotation devices for snorkeling is optional and

-28- people often do not rent them, and that nothing requires a

concession stand that rents snorkeling equipment to provide a

reflective mirror or a whistle to alert others in the event of

distress. Second, El Conquistador argues that, even assuming it

had a duty to provide flotation devices to snorkelers, it did not

breach that duty because Casa del Mar had between eight and fifteen

flotation belts available for rental when Dr. Holland got his

snorkeling equipment on January 1st. El Conquistador emphasizes

that, although aware that he could rent a flotation belt for only

five dollars, Dr. Holland still opted not to rent one.

Lastly, El Conquistador argues that Appellants cannot

prove the causation element required to survive summary judgment.

According to El Conquistador, Appellants have not pointed to any

evidence in the record establishing that "Dr. Holland more likely

than not perished because [El Conquistador] breached any standard

of care." It argues that the evidence shows that Dr. Holland

"probably" died because of a cardiorespiratory event that occurred

while he was in the water, due to an untreated heart condition.

Following this reasoning, El Conquistador insists that Dr. Holland

would have died due to his underlying health conditions even if he

had been wearing a flotation device because the evidence shows

that Dr. Holland started foaming at the mouth even before his head

ever submerged. El Conquistador further argues that there is no

-29- proximate causation between El Conquistador's alleged breach of

the duty to aid and Dr. Holland's death because third parties

trained in the medical field and in life-saving techniques were

indisputably available "quickly" to aid Dr. Holland as soon as he

became unresponsive, to transport him to Palomino, and to provide

CPR and other assistance, yet, witnesses testified that he either

was already dead or died shortly after being brought ashore.

According to El Conquistador, this shows that having a rescue boat

or an on-duty lifeguard available would not have altered the

outcome and that no evidence in the record suggests otherwise. It

further argues that Appellants have offered no evidence to show

that, "more likely than not," providing an AED sooner would have

saved Dr. Holland's life.

To survive summary judgment, Appellants need to point to

sufficient evidence in the record that would allow a reasonable

jury to rule in their favor as to each of the four elements of an

Article 1802 claim. The parties do not dispute that the third

element is met: a damage or injury. Yet, as discussed above, the

parties vehemently dispute the first two elements, whether El

Conquistador had any one of the three alleged duties of care, and

if it did, whether it breached them, as well as the fourth element,

causation.

-30- "[W]hether a duty exists is typically a legal question

for the court." Candelario del Moral v. UBS Fin. Servs. Inc. of

P.R.,

(1st Cir. 2012) (citing Restatement (Second)

of Torts § 328B (noting that the court decides both "whether [the]

facts give rise to any legal duty on the part of the defendant"

and "the standard of conduct required of the defendant by his legal

duty")). Breach of duty, however, "involv[es] fluid concepts like

reasonableness and foreseeability" and thus "is usually an issue

for a factfinder." Id. "An exception exists where a reasonable

jury could only decide the breach-of-duty issue one way, in which

case a judge can resolve the matter on summary judgment." Id.

Here, we need not decide whether under Puerto Rico law

El Conquistador had the duties of care alleged by Appellants or,

if it indeed had those duties, whether there are genuine issues of

material facts regarding the alleged breach of those duties that

should be resolved at trial. That is so because, even assuming

that both issues are resolved in Appellants' favor, Appellants

have not pointed to evidence in the record from which a reasonable

jury could rule in their favor as to the causation element.

First, regarding the duty to aid and to provide safety

devices, we have carefully examined the extensive record and have

found no evidence from which a reasonable jury could conclude that

-31- if El Conquistador had provided an on-duty lifeguard, 21 hotel

transportation to bring Dr. Holland back to Palomino when he became

unresponsive while in the water, 22 whistles and reflective

mirrors,23 and snorkeling vests (as opposed to flotation vests,

which undisputably were available to rent for five dollars),24 it

is more likely than not that Dr. Holland would have survived. Nor

have we found evidence in the record from which a reasonable jury

could find that it is more likely than not that Dr. Holland would

have survived if the hotel employees had brought the AED to

Dr. Holland sooner, see Room v. Caribe Hilton Hotel,

21 Remember that Dr. Holland was first aided by Mrs. Jassin, who was only twelve feet away from Dr. Holland at the time of the incident, and who was a certified lifeguard trained in CPR and AED techniques. 22 Instead of being transported in the Hobie Cat, which was sailed by members of Dr. Holland's party. 23 Undisputed evidence shows that Mrs. Jassin was swimming approximately twelve feet away from Dr. Holland when she noticed that he was treading water and became unresponsive. There is no evidence that Dr. Holland yelled for help or otherwise seemed in distress or that he would have used reflective devices or whistles. Nor is there evidence suggesting that these devices would have resulted in a faster response. 24 Although Appellants argue in a conclusory manner that there is a dispute regarding whether flotation belts were indeed available for rental, they have not pointed to anything in the record to dispute El Conquistador's well-supported statement that Casa del Mar had approximately eight to fifteen flotation belts available for rental when Dr. Holland got his snorkeling equipment and that two of those belts were rented later in the day to other patrons.

-32- (1st Cir. 1981) (requiring affirmative evidence that a delay to

treat a heart attack caused additional injury), if he had been

taken to the hospital sooner, see

or if Dr. Holland had

received assistance exclusively from hotel staff rather than from

other hotel guests experienced in the medical field or with life-

saving training.25 In fact, when confronted with this lack of

evidence at oral argument, Appellants conceded that this evidence

was not in the record before us26 and that they did not know whether

the result would have been any different had El Conquistador done

everything that Appellants claim it should have done. Because

Appellants cannot point to any evidence in the record from which

a reasonable jury could conclude that, more likely than not,

Dr. Holland would have survived had El Conquistador not breached

its alleged duties to aid and to provide safety devices, they have

failed to establish causation with respect to these claims.

25 The evidence establishes that Dr. Holland quickly lost his pulse on shore, and the AED would not have functioned without a pulse. Further, two doctors and a nurse attended to Dr. Holland. He had epinephrine administered to his heart, and he was continuously receiving CPR. 26 Appellants stated that they intended to bring that evidence at trial. Of course, that is too late. See Ricci v. Alt. Energy, Inc.,

(1st Cir. 2000) (explaining that if the evidence in the summary judgment record is not enough to make an issue upon which the jury may reasonably differ as to whether the defendant's conduct caused plaintiff's injury, summary judgment is appropriate).

-33- See Tormos–Arroyo,

(noting that, under Article

1802, a finding of causation requires that the injury be reasonably

foreseeable and that it could have been avoided had the defendant

performed the omitted act).

Second, the parties also dispute the causation element

of Appellants' duty-to-warn claim. Principally, they offer two

competing theories about Dr. Holland's cause of death. Appellants

argue that El Conquistador's alleged breach of its duty to warn

caused Dr. Holland to drown because of strong ocean currents. In

contrast, El Conquistador contends that Dr. Holland did not die of

drowning because of the ocean conditions but rather because he had

a heart attack due to his untreated heart conditions. It further

argues that this cardiac event was unforeseeable to

El Conquistador, especially because Dr. Holland had filled out a

form from Casa del Mar in which he stated that he did not suffer

from any "physical disease, illness, or disability that would

render [him] unfit for snorkeling." According to Appellants, this

dispute as to what caused Dr. Holland's death -- drowning because

of the ocean currents or a heart attack -- is a question for the

jury and, thus, summary judgment is inappropriate. We disagree.

"It is the role of the judge on summary judgment to

determine whether a particular inference is reasonable." Ricci

v. Alt. Energy, Inc.,

(1st Cir. 2000). "Judgment

-34- about whether an inference is reasonable is different from a 'judge

superimpos[ing] his own ideas of probability and likelihood (no

matter how reasonable those ideas may be).'"

(alteration in

original) (quoting Greenburg v. P.R. Mar. Shipping Auth.,

(1st Cir. 1987)). "In fact, for negligence cases, . . .

[i]t is the function of the court to determine . . . whether the

evidence as to the facts makes an issue upon which the jury may

reasonably differ as to whether the conduct of the defendant has

been a substantial factor in causing the harm to the plaintiff."

Id. at 161-62 (third alteration in original) (quoting Restatement

(Second) of Torts § 434(1)(a)). Because a tort plaintiff has the

burden of showing that it was more likely than not that the

defendant's negligence caused the harm, "[a] mere possibility of

such causation is not enough; and when the matter remains one of

pure speculation and conjecture, or the probabilities are at best

evenly balanced," summary judgment is appropriate. Id. at 162

(emphasis in original) (quoting Restatement (Second) of Torts

§ 433B cmt. a).

Under Puerto Rico law, not everything that causes an

injury satisfies the causation element of an Article 1802 claim.

Rather, "[a] defendant's actions may only be the proximate cause

of a plaintiff's injuries if they in fact caused the injuries and

the defendant could have reasonably foreseen that the injuries (or

-35- related harms) would result from his actions." Vázquez-

Filippetti,

n.6; see also Estremera v. Inmobiliaria

Rac, Inc.,

, 1156 (1980) (finding

causation element not met because mugging in a dark hallway was

not a foreseeable risk from a lack of lighting). Appellants did

not argue below or in their opening brief that a heart attack was

a foreseeable consequence of failing to warn of ocean currents.

Accordingly, any argument to that effect is waived. See P.R. Tel.

Co. v. T-Mobile P.R.,

, 58 n.5 (1st Cir. 2012). 27

Therefore, Appellants can only defeat summary judgment if the

evidence in the record is sufficient to allow a reasonable jury to

conclude that, more likely than not, Dr. Holland drowned because

of strong currents and not because of a cardiac event due to an

underlying medical condition. See Ricci,

(finding "evenly matched" probabilities warrant granting a motion

27 Appellants argued for the first time in their reply brief, and without any citation to the record, that "assuming that Dr. Holland died of a heart attack, . . . a cardiac event . . . was due to the strong currents and to the hotel's negligence in allowing Dr. Holland to go swimming that day and/or its failure to warn about the weather conditions." They further stated that they had deposed Dr. Manuel Quiles, a cardiologist, and that, although Dr. Quiles's deposition transcript was not included in the summary judgment record, Appellants intended to have him testify at trial in support of their position that Dr. Holland did not suffer "an infarct." Yet, as we stated in P.R. Tel. Co., an "argument [ ] raised for the first time on appeal without citation to any pertinent authority . . . is both inadequately presented and waived".

n.5.

-36- for summary judgment). We do not think the evidence allows a jury

to make that conclusion.

Here, the evidence establishes that Dr. Holland had

several medical conditions for which he was not being treated. He

suffered from obesity and, according to his forensic pathologist,

had a "sick" and "considerably" enlarged heart, which can cause

arrhythmias. Dr. Holland also had untreated hypertension,

atherosclerosis, plaque, and a thickened blood ventricle.

Although Appellants rely on the pathology report prepared by

Dr. Cortés -- the forensic pathologist who performed Dr. Holland's

autopsy -- as evidence that Dr. Holland's death was caused by

drowning and not by a cardiac event, when asked to explain his

findings at his deposition, Dr. Cortés stated that a heart attack

was "probably" the precipitating cause for drowning. Furthermore,

according to Mrs. Jassin's deposition testimony, Dr. Holland did

not look like he was drowning, and she thought he was having a

heart attack. In addition, although Dr. Cortés testified that

water found in Dr. Holland's sphenoid sinus was consistent with

drowning, he could not determine at what point Dr. Holland

aspirated that water. The evidence in the record, however, shows

that Dr. Holland aspirated water during his rescue attempt, after

he was seen foaming at the mouth, and there is no evidence that

his head had submerged under water before he started foaming at

-37- the mouth and before the Jassins aided him. Thus, any conclusion

that Dr. Holland aspirated water before he started foaming at the

mouth would be mere speculation.28 See Euromotion, Inc. v. BMW of

N. Am., Inc.,

(1st Cir. 1998) (rejecting

speculation as a basis for denying summary judgment).

We thus conclude that, based on the record before us,

Appellants have not met their burden of showing that it is more

likely than not that El Conquistador's alleged failure to warn

Dr. Holland of the ocean conditions caused Dr. Holland's death by

drowning. See Ricci,

(explaining that "[a] mere

possibility [that the defendant's alleged negligence caused the

injury] is not enough; and when the matter remains one of pure

speculation and conjecture, or the probabilities are at best evenly

balanced," summary judgment is appropriate (emphasis in original)

(quoting Restatement (Second) of Torts § 433B cmt. a)).

Accordingly, Appellants are not entitled to try their claim at

trial and summary judgment was appropriate.29

28 This conclusion is also relevant to Dr. Cortés's testimony that "pulmonary edema" and "foaming at the mouth," both of which Dr. Holland exhibited, are symptoms commonly observed in someone who has suffered a heart failure as well as someone who has drowned. Since there is no evidence that Dr. Holland's head was submerged in the water before he was seen foaming at the mouth, Dr. Cortés's testimony does not support Appellants' contention that it was more likely than not that Dr. Holland's death was caused by the ocean currents rather than by a cardiac event. 29 We note that Appellants also challenge the district court's

-38- III. Conclusion

For the foregoing reasons, we affirm the district

court's order.

Affirmed.

finding that the release form signed by Dr. Holland when he rented the snorkeling equipment from Casa del Mar also barred their Article 1802 claim. However, our conclusion that there is insufficient evidence in the record from which a reasonable jury can rule in Appellants' favor on the merits of their Article 1802 claim makes it unnecessary to further address this additional argument. See Flaherty v. Entergy Nuclear Operations, Inc.,

, 56 n.16 (1st Cir. 2019) (declining to address additional arguments advanced by appellant because his appeal failed on other grounds).

-39-