-VCF Farace et al v. American Airlines, Inc. et al, No. 2:2010cv00724 - Document 55 (D. Nev. 2013)
Court Description: ORDER Denying 46 and 47 Motions for Summary Judgment. Signed by Judge Miranda M. Du on 1/14/2013. (Copies have been distributed pursuant to the NEF - SLR)
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-VCF Farace et al v. American Airlines, Inc. et al Doc. 55 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 NORA FARACE and ANTHONY FARACE, 10 Plaintiffs, ORDER 11 12 Case No. 2:10-cv-00724-MMD-VCF v. AMERICAN AIRLINES INC., et al., 13 (Motions for Summary Judgment – dkt. nos. 46, 47) Defendants. 14 15 16 I. SUMMARY 17 Before the Court are Defendants American Airlines and Clark County’s Motions 18 for Summary Judgment. (Dkt. nos. 46 and 47.) The parties have both filed joinders to 19 each other’s Motions. (Dkt. nos. 47 and 49.) For the following reasons, the Motions are 20 both denied. 21 II. BACKGROUND 22 On May 27, 2008, Plaintiff Nora Farace and her husband Plaintiff Anthony Farace 23 arrived at McCarran international Airport on American Airlines flight number 1417 from 24 Chicago. The airplane parked at Gate D-10. Plaintiffs disembarked from the aircraft and 25 made their way onto the jet bridge (also referred to by the parties as the “jetway”), an 26 enclosed, moveable connector which extends from the airport terminal to the airplane 27 and allows passengers to board and disembark without going outside. Defendant 28 American Airlines was a non-exclusive lessee of the jet bridge, which was owned by Dockets.Justia.com 1 Defendant Clark County. (Dkt. no. 23-1 at 2-4.) While walking on the jet bridge, Ms. 2 Farace tripped and fell. When she fell, Ms. Farace was in or near the jet bridge’s 3 “gutter,” an uncarpeted space at the edge of the jet bridge that connects the floor of the 4 jet bridge to the wall. (Dkt. nos. 24-6 at 4-5, 23-2 at 2.) The gutter was marked with 5 black and yellow lines indicating caution. (Dkt. no. 24-6 at 7.) 6 Plaintiffs filed a complaint in Nevada’s Eighth Judicial District Court on April 15, 7 2010, alleging negligence, breach of the warranty of merchantability, strict products 8 liability, breach of warranty for intended use, breach of duty to warn of dangerous 9 defects, breach of contract (all on behalf of Ms. Farace), and loss of consortium (on 10 behalf of Mr. Farace). (Dkt. no. 1-2, Ex. A.) 11 Defendant American Airlines timely removed the case to this Court. (Dkt. no. 1.) 12 On June 21, 2012, the Court granted Plaintiffs’ Motion for Summary Judgment 13 regarding American Airlines’ status as a common carrier. (Dkt. no. 45.) The Court also 14 granted in part and denied in part Defendants’ Motions for Summary Judgment. (Id.) 15 Only Plaintiffs’ negligence and loss of consortium claims remain. The loss of consortium 16 cause of action is derivative of the negligence claim. Plaintiffs argue that Defendants 17 failed to provide an adequate warning about the danger posed by the jet bridge gutter. 18 III. DISCUSSION 19 A. Legal Standard 20 The purpose of summary judgment is to avoid unnecessary trials when there is no 21 dispute as to the facts before the court. Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 22 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings, 23 the discovery and disclosure materials on file, and any affidavits “show there is no 24 genuine issue as to any material fact and that the movant is entitled to judgment as a 25 matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is “genuine” 26 if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for 27 the nonmoving party, and a dispute is “material” if it could affect the outcome of the suit 28 under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). 2 1 Where reasonable minds could differ on the material facts at issue, however, summary 2 judgment is not appropriate. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 3 1995). “The amount of evidence necessary to raise a genuine issue of material fact is 4 enough ‘to require a jury or judge to resolve the parties’ differing versions of the truth at 5 trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l 6 Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968)). 7 judgment motion, a court views all facts and draws all inferences in the light most 8 favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 9 F.2d 1100, 1103 (9th Cir. 1986). In evaluating a summary 10 The moving party bears the burden of showing that there are no genuine issues 11 of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). “In 12 order to carry its burden of production, the moving party must either produce evidence 13 negating an essential element of the nonmoving party’s claim or defense or show that 14 the nonmoving party does not have enough evidence of an essential element to carry its 15 ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 16 F.3d 1099, 1102 (9th Cir. 2000). 17 requirements, the burden shifts to the party resisting the motion to “set forth specific 18 facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. The 19 nonmoving party “may not rely on denials in the pleadings but must produce specific 20 evidence, through affidavits or admissible discovery material, to show that the dispute 21 exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do 22 more than simply show that there is some metaphysical doubt as to the material facts.” 23 Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (internal citations omitted). “The 24 mere existence of a scintilla of evidence in support of the plaintiff’s position will be 25 insufficient.” Anderson, 477 U.S. at 252. Once the moving party satisfies Rule 56’s 26 B. Whether Plaintiffs have a Viable Legal Cause of Action 27 Defendants ague that failure to adequately warn is a theory of recovery sounding 28 in product liability, not in negligence. (See dkt. no. 47 at 3.) In support of this argument, 3 1 Defendants cite to Ugaz v. American Airlines, 576 F. Supp. 2d 1354, 1375 (S.D. Fla. 2 2008). There, the plaintiff sued American Airlines when she fell walking up an inoperable 3 escalator shortly after her flight arrived at Miami International Airport. Id. The court held 4 that to the extent the inoperable escalator was dangerous, the onus was on the 5 escalator’s manufacturer, not the airline, to equip the escalator with a warning label. Id. 6 This Court agrees with the Ugaz court that a manufacturer’s failure to warn may make it 7 liable for negligence or strict liability. However, the Court parts way with the Ugaz court’s 8 reasoning that, as a matter of law, only the manufacturer is responsible for providing a 9 warning label on a potentially harmful product. In certain instances, a landowner who 10 places a potentially dangerous product on her property may be liable as well. Were the 11 Court to determine that a landowner is never liable for harms caused by dangerous 12 products she places on her property, this could (1) incentivize landowners to purchase 13 inexpensive, defective products; and/or (2) disincentivize landowners from placing 14 warning signs or labels on dangerous products where the manufacturer has failed to do 15 so (or has done so, but ineffectively). 16 principle of landowner liability tort law – that a property owner must exercise reasonable 17 care in managing and maintaining her property. See, e.g., Sprecher v. Adamson Cos., 18 30 Cal. 3d 358, 363 (1981), (it is a “fundamental concept” that “a person is liable for 19 injuries caused “by his want of ordinary care . . . in the management of his property or 20 person . . . .”) (ellipses in original; citation and quotation marks omitted)). Such a result does not comport with a key Duty of Care and the “Open and Obvious” Danger Doctrine 21 C. 22 “[A] landowner owes a duty to use reasonable care to keep the premises in a 23 reasonably safe condition for use.” Scialabba v. Brandise Const. Co., Inc., 921 P.2d 24 928, 930 (Nev. 1996). 25 “To prevail on a negligence claim, a plaintiff must establish four elements: (1) the 26 existence of a duty of care, (2) breach of that duty, (3) legal causation, and (4) 27 damages.” Scott v. Equity Group, Inc., No. 54806, 2012 WL 3139856, at *2 (Nev. July 28 31, 2012) (quotation marks and citation omitted). “In negligence actions, courts are 4 1 generally reluctant to grant summary judgment. Nevertheless, when plaintiff cannot 2 recover as a matter of law, defendant is entitled to summary judgment. To establish 3 entitlement to judgment as a matter of law, defendant need only negate one element of 4 plaintiff’s case (i.e., duty, breach, causation, or damages).” Harrington v. Syufy Enters., 5 931 P.2d 1378, 1380 (Nev. 1997) (citations omitted). Defendants’ primary argument is that they owed Plaintiffs no duty of care because 6 7 the gutter constituted an “open and obvious” danger. 8 With some exceptions, there is no duty to warn when a danger is open and 9 obvious. Kalter v. Grand Circle Travel, 631 F. Supp. 2d 1253, 1259 (C.D. Cal. 2009). “A 10 plaintiff is barred from recovery where the danger is obvious. However, [the] analysis 11 does not stop there, because [a plaintiff’s] knowledge of dangerous conditions does not 12 inevitably bar recovery as other circumstances may properly bear upon the right to 13 recover. For example, even where a danger is obvious, a defendant may be negligent in 14 having created the peril or in subjecting the plaintiff to the peril. In addition, [a plaintiff’s] 15 knowledge of a dangerous condition may not bar recovery if his mission justifies 16 encounter of it.” Nivens v. TA Operating Corp., No. 55460, 2011 WL 6916438, at *2 17 (Nev. Dec. 27, 2011) (quotation marks and citations omitted). 18 The Court determines that the open and obvious danger doctrine is inapplicable 19 here for two reasons. First, defendants essentially concede that the danger was not 20 open and obvious. The parties agree that Defendants did warn Ms. Farace of the 21 dangerous condition of the gutter. They agree the black and yellow striping on the gutter 22 constituted such a warning. The question is whether Defendants should have done 23 something more. Thus, the “open and obvious” danger doctrine cannot apply here, 24 because Defendants implicitly recognized the gutter’s danger was not open and obvious 25 by placing the “warning” label on the gutter. (See dkt. no. 47 at 8: “The undisputed facts 26 . . . confirm [Ms. Farace] was warned. [She] was admittedly aware that the yellow stripes 27 /// 28 /// 5 1 meant there was a potential hazard [sic] sufficient to establish this undisputed fact.”]).1 2 Second, whether or not a danger is open and obvious, once a defendant warns others 3 about the danger, it has a duty to make the warning adequate. To hold otherwise would 4 leave injured plaintiffs without recourse against defendants who provide mere cursory 5 warnings. 6 warning regarding a dangerous condition was so inadequate as to breach the duty of 7 care owed to the plaintiff. The better result is to have a jury decide whether or not a defendant’s 8 Notably, Ugaz, which both Defendants cite throughout their Motions, is not 9 analogous to this case. 576 F. Supp. 2d at 1357. There the court held that American 10 Airlines owed no duty to the plaintiff, that the inoperable escalator was not the proximate 11 cause of the plaintiff’s injury, and determined that the open and obvious danger doctrine 12 was not applicable because the inoperable escalator was not hazardous. Id. at 1367-74. 13 But here, the Court has ruled that American Airlines owes a heightened “common 14 carrier” duty to Faraces (see dkt. no. 45) and Clark County does not deny that as the 15 landowner it owed the Faraces a heightened duty of care; causation is not at issue in 16 this Motion; and the Court does not hold that a jet bridge with a warning label is, as a 17 matter of law, harmless. In fact, by arguing that the jet bridge gutter was an open and 18 obvious danger, Defendants impliedly recognize that the gutter was, in fact, dangerous. 19 Though Defendants are free to argue in the alternative, see Fed. R. Civ. P. 8(d)(2),(3), 20 the Court is unconvinced that a jet bridge gutter, a product that comes with a warning 21 label on it, is inherently unhazardous. 22 /// 23 /// 24 /// 25 26 27 28 Defendants argue that in Ms. Farace’s deposition testimony, Ms. Farace states that she did not need additional warning to understand the danger posed by the gutter. After reviewing Ms. Farace’s deposition transcript, the Court determines that Defendants mischaracterize her testimony. 1 6 1 2 3 4 5 IV. CONCLUSION IT IS HEREBY ORDERED that Defendants’ Motions for Summary Judgment (dkt. nos. 46 and 47) are DENIED. ENTERED THIS 14th day of January 2013. 6 7 8 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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