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Contributory and Comparative Negligence in Puerto Rico

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Contributory and Comparative Negligence in Puerto Rico University of Miami Law Review Volume 11 Number 4 Miami Law Quarterly Article 9 7-1-1957 Contributory and Comparative Negligence in Puerto Rico Donald A. Wiesner Follow this and additional works at: https://repository.law.miami.edu/umlr Recommended Citation Donald A. Wiesner, Contributory and Comparative Negligence in Puerto Rico, 11 U. Miami L. Rev. 502 (1957) Available at: https://repository.law.miami.edu/umlr/vol11/iss4/9 This Comment is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. COMMENT CONTRIBUTORY AND COMPARATIVE NEGLIGENCE IN PUERTO RICO DONALD A. WIESNER* 1. INTRODUCTION When a system of law is exposed to strong influences coming from other legal systems, confusion and divergence of judicial thinking will inevitably follow. Recent developments in Latin America are illustrative. Due to close proximity with that area, the problem is of special interest to students of comparative law. Cases decided by Latin American courts have furnished a wealth of material from which the interplay between different legal systems may be examined. A recent Puerto Rican decision,' which this paper will highlight, illustrates the peculiar status of its private law and evinces the pressures exerted upon its civil law system by the common law. Spanish for nearly four centuries, Puerto Rico was imbued with a strong propensity for civil law traditions. Nevertheless, the events of the past fifty years, bringing common law ideas into the island, have occasioned a profound change in its legal system. Strangly, Spanish history left little legal background. Private law found expression only in the tey de Indias,3 complying with the military interests which governed the island for several centuries. American occupation, following the Spanish withdrawal, found courts to be almost non-existent, the island run like a corporate entity and a society that had experienced a civil government only in the last few months 4 of Spanish rule. Soon after the American occupation, Puerto Rico adopted the Spanish Civil Code5 and also enacted legislation patterned after statutes in force in the several states of the United States.' The effect of the enactment of the Spanish Code and the formal espousal of the techniques of the civil * Instructor, Business Law, University of Miami. 1. Irizarry v. The People of Puerto Rico, 75 P.R. 740 (1953). 2. WELLS CONSTITUTIONAL DEVELOPMENTS IN PUERTO Rico. DEVELOPMENTS TOWARD SELF dOVERNMENT IN TIlE CARIBBEAN (1955). 3. Spanish colonies were ruled by a series of special statutes. Later they were codified and called the Recompliacion de la Ley de Indias. 4. McIntosh, Constitutional Government in Puerto Rico, 24 REv. Jut. U.P.R. 197, 199 (1954-55). 5. "The Legal Systems of Louisiana and Puerto Rico have certain similar attributes. Both carried forward into America dominion a civil law tradition of European origin. In both places civil law came out the victor in the clash with the common law , . " Dainow, The Method of Legal Development Through Judicial interpretation in Louisiana and Puerto Rico, 22 REv. JU. U.P.R. 108, (1952-3). 6. SADY, "'[E UNITED STATES AND DEPENDENT PEOPLES. (1956); PERXINS, TIIE UNITED STATES AND TE CARIBBEAN. (1947); While the island enjoys a considerable measure of political independence the economy is integrated with that of the United States to a great extent. PRoUm'ooT, BRITAIN AND TIlE UNITED STATES IN THE CARIBBEAN (1953). COMMENT 503 law system led one writer to state that their adoption would ". undoubt- edly carry Puerto Rican courts back into the more or less remote history of Spanish law ....- 7 A half century has passed since these words were expressed. The instant case will indicate that the prediction was not realized. tl. THE CASE IN QUESTION In Irizarry v. The People of Puerto Rico,' the several opinions present material that persuasively illustrates the conflicting operations of civil and common law technique within a single judisdiction. The facts of the case are simple. A boy of eight years found a cartridge containing explosives apparently abandoned by a state highway crew. Hc carried it home, put the cartridge oi a stone and struck it with a machete causing au explosion from which lie suffered the loss of his left eye, possible future damage to the other eye and other injuries. He sued and recovered damages in the amount of $3,000. Both parties appealed to the Supreme Court of Puerto Rico, the minor alleging the amount of damages was inad- equate and the defendant claiming that the facts proved the minor con- tributorily negligent, barring his claim. The per curiam opinion, citing four Puerto Rican cases and the Amer- ican Law Reports, held that the acts of the minor did not constitute con- tributory negligence. Further, taking cognizance of the minor's plea, the award of damages was increased to $15,000. In his concurring opinion Justice Ortiz joined the per curiam decision as to the result, but disagreed as to the grounds by which the court reached its decision. Ieargued that even though the minor was somewhat negligent, such finding should not bar his recovery since the doctrine of contributory negligence was not the law in Puerto Rico. In the other concurring opinions, one Justice was convinced that the minor was not negligent; the other, even though in sympathy with the views of Justice Ortiz on the adoption of the comparative negligence doctrine, held that the court lacked authority to change the law. It is in the differences in these four opinions that one is able to observe the variation in techniques. The acceptance of the contributory negligence doctrine, or its rejection, is merely the battleground;" the issues are broader and rather appear to be the predominance of one or the other legal system. III. CONTRIBUTORY NEGLIGENCE IN PUERTO Rico The contributory negligence doctrine appears to be the present rule in Puerto Rico, but in what manner has it attached itself to the system? Does it belong there? 7. Drake, The Old Roman Law and a Modern American Code, 3 MICH. L. REv. 108, 112, (1904-5). 8. 75 P.R. 740, (1953). 9. Justice Oritz in Alverez v. Hernandez, 74 P.R. 460 (1953) on facts nat dissimilar to the instant case failed to raise his objections to the issue of contributory negligence. MIAMI LAW QUARTERLY Justice Ortiz in the instant case cites the origin of the doctrine in Claudio v. Cortinez,1' decided in 1905, where a local court spoke of con- tributory negligence for the first time. Significantly, that decision relied on a special act" governing the master-servant relationship, and the court neither discussed, relied or even commented on any provision of the general, i.e. civil, code! On the facts, the decision in the Claudio case was harsh one. A baker who had lost his arm in a kneading machine was denied recovery because he knew of the dangers of the machine and failed to bring his conduct within the limited applicability of the special statute governing liability of employers. In denying recovery the court cited American cases which sup- ported the application of the contributory negligence doctrine in similar instances. However, no mention was made of the civil code and its general provision governing negligence actions. The special employer statute was held inapplicable in a decision' 2 four years later where the relation of master and servant did not exist between the parties. Nevertheless, the deadly touch of the common law, once recog- nized in the prior case, spread at once into the general area of torts, invading the civil law wheee today the code has been construed to embody the doc- trine. The doctrine needed but the Claudio case and its subsequent citation in Natal v. Bartolomy,'3 three years later, to establish itself as the proper inter- pretation of Article 1802 of the code; in the Natal decision it was firmly cemented by the terse statement of Justice Figueras that: "And with regard to contributory negligence, see the case of Herienegildo Claudio vs. Jose Cortinez . ..." • Subsequently the doctrine was not questioned as the cases demonstrate. The only concern was with the collateral problems of whether certain acts on the part of the plaintiff constituted negligence." In 1931 the court in Mirando v. Port6 Rico Lt. & P. Co." reaffirmed the doctrine when it said that, "The doctrine of contributory negligence has been adopted in this jurisdiction together with and subject to limitations ...."16 It would appear that the doctrine has served Puerto Rico for the past fifty years in much the same fashion as it has operated in the United States. 10. 9 P.R. 97 (1905). 11. REv. STAT. PUFRTro Rico §§ 332-333 pp. 150-156, March I, 1902. 12. Vargas v. A. Monrog 6 ilijos, 15 P.R. 26 (1909). 13. 14 P.R. 474 (1908). 14. Acosta v. Crespo, 70 P.R. 223 (1949); Tavarez v. San Juan Lodge, 68 P.R. 681 (1948); Castro v. Gonzalez, 58 P.R. 369 (1941); Rivera v. Central Pasto Viejo, Inc., 44 P.R. 236 (1932); Portalatin v. Noriega, 33 P.R. 755 (1924); Rubio v. Garage Mayagilez Inc., 23 P.R. 565 (1916); Rosado v. Ponce Railway & Light Co. 18 P.R. 593 (1912). 15. 42 P.R. 694 (1931). 16. Id.at 710. The limitations referred to by the court are the lastclear chance doctrine and similar mitigating concepts that are recognized in common law jurisdictions. The court included in those the adoption of the constructive knowledge feature of the last clear chance doctrine.
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