Dupont Case
12/31/86: FIRE: 97 dead 140 inj.
1/87: FIRST SUITS
247 Defendants
2,411 Plaintiffs
230 Lawyers
Consolidated under 28 USC § 1407, multidistrict litigation may be consolidated in a single district by order of the PanelDISCOVERY
1/87-11/88
2,330 depositions
3,000,000 documentsTRIALS
1st TRIAL (Settled)
3/15/89-5/12/89
Dealt with ownership of the hotel
2d TRIAL (Verdict)
6/27/89-9/28/90
Representative plaintiffs on issues of liability and damages
7/21/91: $220 Million Settlement to 2,411 plaintiffs
'91-'96: Attorneys' Fees of $68 Million for plaintiffs' lawyers
December of 1998: The final settlement checks are distributed are distributed“certifies” a question of state or territorial law to the highest court of the state or territory whose laws it is applying
Permitted under most state rules of procedure and under federal rules“Certification,” accepting
(1) questions of Puerto Rican law [must] be involved;
(2) said questions may determine * * * the outcome of the case;
(3) there are no clear precedents in the case law of the Puerto Rico Supreme Court;
(4) an account of all the facts relevant to said questions be included, clearly showing the nature of the controversy in which the questions arise.
(p. 121, Puerto Rico Attorney General asked for it; pp. 127-128, discussed).Choice of Law in U.S. Courts
Note the references to Erie in note 9
You may end up applying the law of a foreign nation but
Many U.S. State laws have non-common law origin
In Florida, we still old Spanish land grants
In Louisiana we have the oldest civil code in the AmericasLanguage
Articles and Sections: All civil codes are divided into "articles" not "sections." "Titles" are likewise not used, rather the Code is divided into "parts" and "chapters." However, when the Laws of Puerto Rico were compiled in a single collection the editor followed the American system of "Titles" and "sections.” fn. 8, p. 128.
case law (jurisprudencia)
The Civil Code commentators (tratadistas), ….“State” law applies in Diversity
(fn. 9, p. 128 and accompanying text)
Rules of Decision Act, 28 U.S.C. sec. 1652 (1982)
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). In carrying out this duty we generally must resolve questions of local law which are dispositive of the case, see Meredith v. Winter Haven, 320 U.S. 228, 234, 88 L. Ed. 9, 64 S. Ct. 7 (1943), unless we determine that the abstention doctrine applies, Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971).What is “State” law
When there is no local case law directly on point, we can predict how the local courts would decide the matter if faced with a similar case. See Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 209, 100 L. Ed. 199, 76 S. Ct. 273 (1956) ("As long as there is diversity jurisdiction, 'estimates' are necessarily often all that federal courts can make in ascertaining what the state court would rule to be its law")(Frankfurter, J. concurring)).Fn. 9, p. 128.Is this Spanish law really “Foreign”?
Fuero Juzgo (634)
Fuero Real (1255)
Las Siete Partidas (1265/1348)
La Nueva Recopilación (1597)
Recopilación de Leyes de los Reynos de las Indias (c. 1681)
Novísima Recopilación (Bourbon period) (c. 1752-1808)
Código Civil para Cuba y Puerto Rico (1898).Civil Code applies here
Civil Code itself is the mandatory starting point in the analysis of Puerto Rico tort law. Valle v. Ame. Inter. Ins. Co., 108 D.P.R. 692, 695, 8 P.R. S. Ct. Off. Trans. 735, 736 (1979) (In overruling all prior tort law cases based exclusively on common law precedent, the Supreme Court stated: "Nowadays, it seems unnecessary to reiterate that, in Puerto Rico, the law on the field of damages is governed -- both in form and in substance -- by the civil law system.") cited as controlling in Santiago v. Group Brasil, Inc., 830 F.2d 413, 415 (1st Cir. 1987) (Products liability case).Sources of Law: The Influence of tratadistas, pp. 129-130
(1) written law (ley);
(2) the work of tratadistas (doctrina); and
(3) judicial opinions (jurisprudencia). Tratadistas (which literally translated means "treatise writers") are scholars who author detailed commentaries on the Civil Code, just like those scholars who analyze the common law. However, in the civil code system, the doctrina is an essential tool for interpretation of the law which may even be more influential than a court decision ***
Please note that I have corrected numbering errors in references to the articles. Your text is correct, but I had made some errors in the slides, which one you noticed, and I have corrected them here.
Art. 1807
The owner of a building is liable for damages which may result from the collapse of the whole or a part thereof, if it should occur through the absence of the necessary repairs.
Article 1807 of the Puerto Civil Code, 31 L.P.R.A. sec. 5146 (1930)Art. 1809
Should the damages referred to in the two preceding sections [Articles 1807 and 1808, 31 L.P.R.A. secs. 5146, 5147] arise from defects in construction, the third person who suffers it may only claim damages of the architect, or, in a proper case, of the constructor [sic, builder or contractor], within the legal period.
31 L.P.R.A. sec. 5147 (1930)(emphasis added).Art. 1483, in full
The contractor of a building which may have been destroyed by reason of defects in the construction shall be liable for the losses and damages if said building should collapse within ten years, to be counted from the completion of the construction; and during the same time the liability shall be incurred by the architect who may have directed the work if the collapse is due to defects in the ground or in the direction.
If the cause [of the collapse] should be the noncompliance of the contractor with the conditions of the contract, the action for indemnity may be brought within fifteen years.Substantive legal standard
In Geigel v. Mariani, 85 D.P.R. 46 (1962), the Puerto Rico Supreme Court held that Article 1483 creates a presumption of negligence on the part of the architect when the building collapses within the ten year period. The architect bears the burden of rebutting that presumption of negligence. Id.Limitations or Jurisdictional, 134-135
The ten year period is also a plazo de caducidad: it is not a prescriptive period (a statute of limitations) which constitutes an affirmative defense, rather it is a jurisdictional period, that is, the claim does not exist in the eyes of the law once the ten years have passed. A court of law has no flexibility to hear such time-barred claims.Sources, fn. 24, p. 136
See II-3 Puig-Brutau, Fundamentos de Derecho Civil, pp. 126-127 (1983)(The unanimous view of the tratadistas is that the plazo decenal is the legal period of article 1809);
J. Cadarso-Palau, La Responsabilidad Decenal de Arquitectos y Constructores, Montecorvo, p. 333 (1976);
II-2 Albaladejo, Derecho Civil, p. 441 (1975);
31 Scaevola, Codigo Civil, p. 617 (1974);Sources, continued
12 Manresa, Codigo Civil Español, p. 697 (1951);
compare Santos-Briz, "El Contrato de Ejecucion de Obra y su Problematica Juridica," Revista de Derecho Privado, May 1972 (Despite absence of express reference thereto, the tiempo legal of Article 1.909 (Puerto Rico's 1809) is the plazo decenal of Article 1.591 (Puerto Rico's 1483)) with IV Santos-Briz, Derecho Civil, pp. 394-97 (1973).Ruina
Ruina is a very broad concept which includes: (1) the complete collapse of the structure (ruina total); (2) defects which endanger, though not completely destroy, the entire structure or which completely destroy an essential part of it (ruina parcial); and (3) defects which make the structure or an essential part of it unsuitable for its intended use (ruina funcional). Maldonado Perez v. Las Vegas Dev., 111 P.R. Dec. 573, 574-575 (1981).
Facts, p. 140
On May 5, 1983, an Eastern Airlines flight departed from Miami, bound for the Bahamas. Shortly after takeoff, one of the plane’s three jet engines lost oil pressure. The flight crew shut down the failing engine and turned the plane around to return to Miami. Soon thereafter, the second and third engines failed due to loss of oil pressure. The plane began losing altitude rapidly, and the passengers were informed that the plane would be ditched in the Atlantic Ocean. Fortunately, after a period of descending flight without power, the crew managed to restart an engine and land the plane safely at Miami International Airport. 872 F. 2d 1462, 1466 (CA11 1989).Article 17 Warsaw Treaty
“The carrier shall be liable for damage sustained in the event of the death [mort] or wounding [blessure] of a passenger or any other bodily injury [ou . . . toute autre lésion corporelle] suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.” (p. 142)Art. 17: carrier is liable for passenger injury only when three conditions are satisfied:
1) there has been an accident, in which
2) the passenger suffered “mort,” “blessure,” “ou . . . toute autre lésion corporelle,” and
3) the accident took place on board the aircraft or in the course of operations of embarking or disembarking.
P. 143Lésion Corporelle: Language
French language is the “authentic” version of the text. (p. 143)
French Legal Meaning of Lesion Corporelle?Language
EU linguistic “big bang” headline today (Jan. 2005), the EU went from 15 member states sharing 11 languages to 25 member states sharing 20 languages, but now they agree to use “just” 5 languagesLésion Corporelle:
Senate English Translation
“any other bodily injury”Lésion corporelle: Meaning?
“French legal meaning” (p. 143)
What did lésion corporelle mean to a French Jurist in 1929?
Do you think that Justice Marshall might have wanted to know that
in France stare decisis is not officially recognized and mostly legally forbidden?
that lower courts can ignore an appellate reversal within the same case?
it is not until the second time that an appellate court consistently rules on an issue that a decision becomes binding on the lower court within the same litigation?French Civil Code Article 4
The judge who refuses to decide on the pretext of silence, obscurity, or insufficiency of law may be prosecuted for denial of justice.French Civil Code Article 5
Judges are forbidden to pronounce decisions by way of general regulatory provisions on cases that are submitted to them.Art. 1 Swiss Civ. Code
The law regulates all matters to which the letter or the spirit of any of its provisions apply.
In the absence of an applicable legal provision, the judge pronounces in accordance with customary law and, in the absence of a custom, according to the rules that he would establish if he had to act as legislator.
He is guided by the solutions consecrated by juristic opinion and case law.Sources
Bilingual Dictionary, pp. 143-144
Other Translations, p. 144
French Legal Sources, pp. 144-146French Legal Sources, 144, et seq.
(1) Legislation, p. 145
(2) Judicial Decisions, p. 146
(3) Scholarly Writing, p. 146French Civil Code Article 5
Judges are forbidden to pronounce decisions by way of general regulatory provisions on cases that are submitted to them.Art. 1 Swiss Civil Code
The law regulates all matters to which the letter or the spirit of any of its provisions apply.
In the absence of an applicable legal provision, the judge pronounces in accordance with customary law and, in the absence of a custom, according to the rules that he would establish if he had to act as legislator.
He is guided by the solutions consecrated by juristic opinion and case law.French De Facto Jurisprudence
1. Jurisprudence constant, i.e., a series of concordant decisions;
2. arrêt de principe, i.e., a judgment intended to establish principle, either because the matter was unsettled or because it reverses prior decisions;
3. arrêt d’espece, a case limited to its own facts.French Civil Code Art. 1382
Any act of man, which causes damages to another, obliges the person at fault to repair it.French Cases, fn. 34, 145, fn. 35, p. 146.
Emotional distress awards were given under French law, ex., for injury to honor arising from adultery.
Emotional distress awards also available for family that loses a loved one to tortious conduct.
Whether relatives of dead or injured passengers can recover for mental suffering is different from whether or not the passengers themselves can so recover.Scholarly Writings, finally?, 145-146
Miller argues for a liberal interpretation of the term to include a broad range of injuries, including psychic (pain and suffering).
Commentators point out that French law allowed recover of such damages by 1929.
Marshall again distinguishes by stating that it must have been the parties’ intent and understanding that this be included in Lésion Corporelle.Other countries
German: “infringement on the health”
Israel: recognizes damages for pain and suffering under the convention.
Commentary, fn. 35, 146.
First there is a debate about the translation being “overbroad”
Debate over whether traumatism or perturbations should be translated broadly or narrowly.Post-Signing Conduct and Interpretations of the Signatories
1951: Change suggested by the French delegate to make it more expressly broad, which was opposed by the U.S. delegate
Israeli decision was distinguished.
Finally, this is a strong imposition of liability and the Supreme Court was not prepared to construe it broadly.Amendments to the Convention
Discussion of substituting “affection corporelle” for “lesion corporelle”, p. 152
The Hague Protocol of 1955, p. 152
Montreal Agreement of 1966, p. 154
Guatemala City Protocol of 1971, p. 155Teichner case
Supreme Court of Islrael, p. 155-156
1976 Entebe hijacking
Probably counter to the negotiating history of the Convention
“Desirable Jurisprudential Policy”
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