Glass v. Northwest Airlines, Inc. et al, No. 2:2009cv02206 - Document 216 (W.D. Tenn. 2011)
Court Description: ORDER GRANTING 135 Air Serv Corporation's Motion for Summary Judgment; GRANTING IN PART and DENYING IN PART 157 Northwest Airlines, Inc.'s Motion for Summary Judgment; GRANTING 158 Pinnacle Airlines, Inc.'s Motion for Summary Judgment. Signed by Judge Samuel H. Mays, Jr., on 01/04/2010. (Mays, Samuel)
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Glass v. Northwest Airlines, Inc. et al Doc. 216 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION ) ) Plaintiff, ) ) v. ) ) NORTHWEST AIRLINES, INC; DELTA ) AIRLINES, INC; PINNACLE AIRLINES, ) ) INC.; PINNACLE AIRLINES CORP.; ) AIR SERV CORP.; and MEMPHIS) SHELBY COUNTY AIRPORT AUTHORITY, ) ) Defendants. ) BRENDA GLASS, Case No. 09-2206 ORDER ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT Plaintiff Brenda Glass (“Plaintiff”) alleges negligence, negligence per se, and breach of contract based on an incident at Memphis International Airport (the “Airport”) on September 9, 2008, in which her father, Clarence Glass (“Glass”), fell down an escalator, suffering serious injuries that allegedly caused his death. (See Am. Compl., ECF No. 104 ¶¶ 10, 23-32.) Before the Court are three motions for summary judgment separately Serv”); filed Pinnacle by Defendants Airlines, Inc. Air Serv Corporation (“Pinnacle”); and (“Air Northwest Airlines, Inc. (“Northwest”) (collectively, “Defendants”). (See Def. Air Serv Corp.’s Mot. for Summ. J., ECF No. 135 (“Air Serv’s Mot.”); Def. Pinnacle Airlines, Inc.’s Mot. for Summ. J., Dockets.Justia.com ECF No. 158 (“Pinnacle’s Mot.”); Def. Northwest Airlines, Inc.’s Mot. for Summ. J., ECF No. 157 (“Northwest’s Mot.”).) responded in opposition to the motions. Plaintiff (See Pl.’s Resp. in Opp’n to Def. Air Serv. Corp.’s Mot. for Summ. J., ECF No. 174 (“Pl.’s Resp. to Air Serv.”); Pl.’s Resp. in Opp’n to Def. Northwest Airlines Inc.’s Mot. for Summ. J., ECF No. 178 (“Pl.’s Resp. to Northwest”); Pl.’s Resp. in Opp’n to Def. Pinnacle Airlines, Inc.’s Mot. for Summ. J., ECF No. 179 (“Pl.’s Resp. to Pinnacle”).) Air Serv replied. (See Def. Air Serv Corp.’s Reply to Pl.’s Resp. to Air Serv Corp.’s Mot. for Summ. J., ECF No. 182.) (“Air Serv’s Reply”) For the following reasons, Air Serv’s motion is GRANTED, Northwest’s motion is GRANTED IN PART and DENIED IN PART, and Pinnacle’s motion is GRANTED. I. Background1 Before his fall, Glass had traveled from Michigan to Memphis on an airline ticket purchased for him by Plaintiff, his daughter. (Def. Air Serv. Corp.’s Statement of Undisputed 1 Unless otherwise stated, the facts in this Part are undisputed for purposes of summary judgment. The Defendants filed three separate statements of undisputed facts. (See Def. Air Serv. Corp.’s Statement of Undisputed Material Facts in Supp. of Mot. for Summ. J., ECF No. 136-1 (“Air Serv’s Statement”); Statement of Undisputed Material Facts in Supp. of Def. Pinnacle Airlines, Inc.’s Mot. for Summ. J., ECF No. 158-2 (“Pinnacle’s Statement”); Statement of Undisputed Material Facts in Supp. of Def. Northwest Airlines Inc.’s Mot. for Summ. J., ECF No. 157-2 (“Northwest’s Statement”).) Because the statements filed by Pinnacle and Northwest are substantively identical and Plaintiff’s separate responses to those statements are substantively identical, the Court refers only to the statement filed by Northwest and Plaintiff’s responses to that statement. 2 Material Facts in Supp. of Mot. for Summ. J., ECF No. 136-1 ¶¶ 1-3 (“Air Serv’s Statement”); Statement of Undisputed Material Facts in Supp. of Def. Northwest Airlines Inc.’s Mot. for Summ. J. ¶ 1, ECF No. 157-2 (“Northwest’s Statement”).) booked the ticket for her father’s flight with Plaintiff requested wheelchair assistance for him. Statement ¶¶ 3-4; Northwest’s Statement When she ¶¶ Northwest, (Air Serv’s 2.) Northwest provides that service to its passengers for no additional fee. (Northwest’s Statement ¶ 3.) At the time of the accident, Northwest had contracted with Air Serv for passenger wheelchair services at the Airport. (Air Serv’s Statement ¶¶ 5-6; Northwest’s Statement ¶ 4; see also Ex. C, ECF No. 157-4.) Under their contract (the “Northwest-Air Serv Contract”), a “planned” request was a wheelchair request made by a Airport. passenger (See Air before Serv’s the passenger’s Statement ¶ arrival 7.) When at Air the Serv received a planned request, it was required to send a wheelchair to the requesting passenger’s “aircraft block time.” The planned parties to arrival. (Id. ¶ 8.) it implies Air that how Northwest Northwest requests within thirty minutes of (Ex. C., at Ex. § 7.1.6.) dispute requests. gate Serv via states “telex” informed that printer it Air sent before Serv of planned passengers’ Plaintiff disputes this fact to the extent telex requests 3 were the only way Northwest relayed planned requests to Air Serv. (Pl.’s Resps. to Def. Air Serv Corp.’s Statement of Undisputed Material Facts ¶ 8, ECF No. 174-1.) (“Pl.’s Statement to Air Serv”) Plaintiff submits a deposition from Air Serv dispatcher Toni Bland (“Bland”), in which she states that, in addition to telex requests, Northwest sent Air Serv a printed list of planned requests before each “bank” of flights. (See Bland Dep., 40:23-50:7, ECF No. 174-2.) That list included the anticipated number of wheelchairs needed for each flight in the bank, but did not include specific information about which passengers requested the wheelchairs. (See id. 47:21-48:2.) Under the Nothwest-Air Serv Contract, wheelchair requests not made in advance were called “unplanned” requests. Serv’s Statement ¶ 10.) (See Air To make unplanned requests, Northwest employees working at the Airport’s gates telephoned an Air Serv dispatcher when an arriving passenger requested a wheelchair.2 (See id. ¶ 11.) Under the Nothwest-Air Serv Contract, Air Serv had a to provide “unplanned” request.3 wheelchair within thirty minutes of an (Air Serv’s Statement ¶¶ 12-13.) 2 Plaintiff disputes this fact to the extent it implies that only unplanned requests required a gate agent to telephone the Air Serv dispatcher. (See Pl.’s Statement to Air Serv ¶ 11.) Plaintiff submits dispatcher Toni Bland’s deposition testimony, in which she states that Air Serv did not send wheelchairs for arriving passengers until a gate agent had called and requested them, even if the passengers had made “planned” requests. (Bland Dep. 20:24-22:22.) 3 Plaintiff denies this fact “to the extent that [Air Serv] asserts that Clarence Glass is a party to this contract and bound by its terms.” (Pl.’s Resps. to Def. Air Serv Corp.’s Statement Undisputed Material Facts ¶¶ 12-13, 4 On the day of Glass’ fall, Air Serv did not receive a telex request from Northwest requesting a wheelchair for him. Serv’s Statement ¶ 9.) When Glass’ flight arrived, Parth Patel (“Patel”) was working as Pinnacle’s gate agent. Statement ¶ 6.) (Air (Northwest’s Before Glass disembarked from the aircraft, Patel called the Air Serv dispatcher to request two wheelchairs for passengers arriving on Glass’ flight.4 (Air Serv’s Statement ¶ 14; Northwest’s Statement ¶ 7.) Glass was the first passenger off his Northwest flight, which was operated by Pinnacle. (Air Serv’s Statement ¶ 16; Pl.’s Resps. to Def. Northwest Airlines, Inc.’s Statement of Undisputed Material Facts ¶ 8, ECF No. 178-1 (“Pl.’s Statement to Northwest”).) Using his walker to exit the aircraft, Glass asked Patel for a wheelchair when he entered the gate area. (Air Serv’s Statement ¶¶ 17-18; see also Northwest’s Statement ¶ 8.) At that time, Patel called Air Serv a second time and requested a wheelchair for Glass. (Air Serv’s Statement ¶ 19; Northwest’s Statement ¶¶ 9, 11.) The Air Serv dispatcher told Patel that a wheelchair was in route to the gate, and Patel asked Glass to have a seat in the gate area and wait for the ECF No. 174-1.) (“Pl.’s Statement to Air Serv”) Plaintiff does not, however, dispute the terms of the contract between Air Serv and Northwest. 4 Plaintiff denies this fact “to the extent that [Air Serv] implies that either of the wheelchairs . . . were requested for and/or at the request of Clarence Glass.” (Pl.’s Statement to Air Serv ¶ 14; see also Pl.’s Statement to Northwest ¶ 7.) However, Plaintiff does not deny that, when Glass disembarked, Patel had already made an initial call to Air Serv requesting two wheelchairs for passengers on Glass’ flight. 5 wheelchair to arrive. (See Northwest’s Statement ¶¶ 12-13; see also Air Serv’s Statement ¶ 19.) Rather than take a seat, however, Glass waited at the gate area for several minutes and left. (Air Serv’s Statement ¶¶ 20, 22; see also Northwest Statement ¶¶ 14, 16.) There is some dispute as to the exact amount of time that elapsed before Glass left the gate area. Air Serv states that Glass five waited leaving. in the gate area for only (Air Serv’s Statement ¶ 22.) minutes before In response to Air Serv, Plaintiff contends that Glass waited up to ten minutes.5 id.) (See Plaintiff states that, after asking Patel for a wheelchair when he entered the gate area, Glass waited nearby for several minutes before he approached a customer service counter, where Patel called Air Serv a third time. Serv ¶ 22.) (See Pl.’s Statement to Air Plaintiff relies on Patel’s deposition, in which he states that Glass was “in [the] gate area” for five or six minutes and “at customer service” for three to four minutes. (Patel Dep. 34:10-34:15, ECF No. 133.) Northwest and Pinnacle state that Glass waited in the gate area for only five minutes (Northwest’s Statement ¶ 14.) In response, Plaintiff again contends that Glass was in the gate 5 Plaintiff actually minutes. (See Pl.’s his deposition that service and no more could conclude that 34:15). contends that Glass waited between eight and eleven Statement to Air Serv ¶ 22). Because Patel states in Glass waited no more than four minutes at customer than six minutes in the gate area, no reasonable jury Glass waited eleven minutes. (See Patel Dep. 34:10- 6 area for five to six minutes, Patel’s deposition testimony. not five minutes, relying on (See Pl.’s Statement to Northwest ¶ 14; see also Patel Dep. 34:10-34:15.) Northwest also states that, after leaving the gate area, Glass walked to the Pinnacle customer service counter and remained there for three to four minutes, which Statement ¶ 16.) Plaintiff does not dispute. (Northwest’s Plaintiff and Northwest agree that, at the customer service counter, Patel called Air Serv a third time and was again told that a wheelchair was on its way. Statement ¶¶ 17-18.) (Northwest Regardless of the specific time Glass waited and whether he waited in the gate area or at the customer service counter, the parties agree that Glass eventually left the area. Serv ¶ 23.) (Air Serv’s Statement ¶ 23; Pl.’s Statement to Air They also agree that, as he was leaving, Patel again told him that a wheelchair was on its way. (Air Serv’s Statement ¶ 23; Pl.’s Statement to Air Serv ¶ 23.) After leaving the gate area, Glass fell backwards down an escalator while attempting to ascend it using his walker. Serv’s Statement ¶ 27; Northwest’s Statement ¶ 22.) (Air A sign on the escalator warned against using “baby buggies and like items” on the escalator, and a public elevator was located nearby.6 6 Plaintiff disputes the fact that an elevator was located nearby “to the extent that [Northwest] implies with any degree of certainty that the elevator was clearly designated” on the date of Glass’ accident, but does not dispute that the elevator was located nearby. (See Pl.’s Statement to Northwest ¶ 22.) 7 (Air Serv’s Statement ¶¶ 26-27; see also Northwest’s Statement ¶¶ 22-23.) Plaintiff alleges that Glass eventually died from his injuries. On April (Am. Compl. ¶ 27.) 6, 2009, Plaintiff filed a complaint against Defendants, which she amended on January 28, 2010, following Glass’ death. (See Compl., ECF No. 1; Am. Compl.) Air Serv moved for summary judgment on May 19, 2010, and Northwest and Pinnacle moved for summary judgment on June 1, 2010. Serv.’s Mot; Northwest’s Mot.; Pinnacle’s Mot.) (See Air On June 14, 2010, Plaintiff responded to Air Serv, and on June 28, 2010, she responded to Northwest and Pinnacle. (See Pl.’s Resp. to Air Serv; Pl.’s Resp. to Northwest; Pl.’s Resp. to Pinnacle.) Serv replied on June 28, 2010. II. (See Air Serv’s Reply.) Jurisdiction and Choice of Law Plaintiff alleges that the jurisdiction. (Am. Compl. ¶ 9); see Court has diversity 28 U.S.C. § 1332(a)(1). Like her late father, Plaintiff is a resident of Michigan. ¶¶ 1-2.) its Air (Id. Defendant Northwest is a Minnesota corporation with principal place of business in Minnesota. (Id. ¶ 3.) Defendant Pinnacle is a Georgia corporation with its principal place of business in Tennessee. (Id. ¶ 5.) Defendant Air Serv is a Georgia corporation with its principal place of business in Georgia. (Id. ¶ 7.) § 1332(a)(1). Complete diversity exists. See 28 U.S.C. Because Plaintiff seeks $7.3 million in damages, 8 more than $75,000 is in controversy, and amount-in-controversy requirement is satisfied. See id. Therefore, the Court has subject matter jurisdiction based on diversity of citizenship. See 28 U.S.C § 1332(a)(1). In a diversity action, state substantive law governs. R.R. Co. v. Tompkins, 304 U .S. 64 (1938). Erie Tennessee follows the “most significant relationship” rule, which provides that “the law of the state where the injury occurred will be applied unless some other state has a more significant relationship to the litigation.” Hataway v. McKinley, 830 S.W.2d 53, 59 (Tenn. 1992). Glass’ alleged injury occurred in Tennessee, and all parties assume that Tennessee law applies. another state has litigation. a more Therefore, significant the Court None alleges that relationship will apply to the Tennessee substantive law. III. Standard of Review Under Federal Rule of Civil Procedure 56, the party moving for summary judgment “bears the burden of clearly and convincingly establishing the nonexistence of any genuine issue of material fact, and the evidence as well as all inferences drawn therefrom must be read in a light most favorable to the party opposing the motion.” Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir. 1986). The moving party can meet this burden by pointing out to the court that the respondent, having 9 had sufficient opportunity for discovery, has no evidence to support an essential element of her case. See Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989). When confronted with a properly supported motion for summary judgment, the respondent must set forth specific facts showing that there is a genuine issue for trial. A genuine issue for trial exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmoving party must “do more than simply show that there is some metaphysical doubt as to the material facts.” Elec. Indus. (1986). Co. One may v. Zenith not Radio oppose a Corp., 475 properly Matsushita U.S. supported judgment motion by mere reliance on the pleadings. Corp. v. Catrett, nonmovant must 477 U.S. present 317, “concrete 324 574, (1986). evidence 586 summary See Celotex Instead, supporting the [her] Cloverdale Equip. Co. v. Simon Aerials, Inc., 869 F.2d claims.” 934, 937 (6th Cir. 1989) (citations omitted). The district court does not have the duty to search the record for such evidence. See InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th 1989). Cir. The nonmovant has the duty to point out specific evidence in the record that would be sufficient to justify a jury decision in her favor. See id. “Summary judgment is an integral part of the Federal Rules as a whole, 10 which are designed to secure the just, speedy, and inexpensive determination of every procedural shortcut.” action[,] rather than a disfavored FDIC v. Jeff Miller Stables, 573 F.3d 289, 294 (6th Cir. 2009) (internal quotation marks and citations omitted). IV. Analysis A. Air Serv’s Motion for Summary Judgment 1. Negligence To establish a claim for negligence under Tennessee law, a plaintiff must show “(1) a duty of care owed by the defendant to the plaintiff; (2) conduct falling below the applicable standard of care amounting to a breach of that duty; (3) an injury or loss; (4) causation in fact; and (5) proximate, or legal cause.” Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn. 1993) (citing McClenahan v. Cooley, 806 S.W.2d 767, 774 (Tenn. 1991); Lindsey v. Miami Dev. Corp., 689 S.W.2d 856, 858 (Tenn. 1985)). Air Serv argues that, because Plaintiff has failed to show that it had a duty to Glass, summary Plaintiff’s negligence claim. judgment must be granted on (Def. Air Serv Corp.’s Mem. of Law in Support of Mot. for Summ. J. 6, ECF No. 136.) (“Air Serv’s Mem.”) Every person has a duty to act as a reasonable person would under the circumstances. See Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 89 (Tenn. 2000) (citations omitted). 11 That duty is usually negative, a duty not to do something. Brown, 160 S.W.3d 462, 478 (Tenn. 2005). See Biscan v. A person must “use reasonable care to refrain from conduct that will foreseeably cause injury to others.” Id. (quoting Turner v. Jordan, 957 S.W.2d 815, 818 (Tenn. 1997)). “The general duty of care does not include an affirmative duty to act for the protection of another, however, unless the defendant stands in some special relationship to either the person who is the source of the danger, or to the person who is Biscan, 160 S.W.3d at 478 foreseeably at risk from the danger.” (quoting Turner, 957 S.W.2d at 818) (internal quotation marks omitted). between Those special parents employees. and relationships children and include between relationships employers and Id. at 479 (citing Restatement (Second) Torts §§ 314-15 (1964)). duties outside Tennessee those (collecting cases). courts special have imposed relationships. affirmative See id. For example, in the medical context, courts have held that physicians have duties not only to their patients but also to foreseeable third parties, such as their patients’ families and “the driving public.” See Bradshaw, 854 S.W.2d at 872; Burroughs v. Magee, 118 S.W.3d 323, 332 (Tenn. 2003). Plaintiff argues that Air Serv had an affirmative duty to provide a wheelchair for Glass. (Pl.’s Resp. to Air Serv. 4.) Plaintiff’s principal argument for imposing that duty is that 12 Air Serv had notice of Glass’ need for a wheelchair from the list of planned wheelchair requests provided to Air Serv by Northwest before the bank of flights in which Glass’ flight arrived (the “Northwest List”). (See id.) Because that notice made Glass’ request “planned” rather than “unplanned,” Plaintiff argues that Air Serv had a duty to have a wheelchair waiting at Glass’ gate when Glass arrived. (See id.) Whether “a defendant owed or assumed a duty of care to a plaintiff is a question of law.” 263 S.W.3d 812, 819 (Tenn. Downs ex rel. Downs v. Bush, 2008) (citing West v. E. Tenn. Pioneer Oil Co., 172 S.W.3d 545, 550 (Tenn. 2005); Stewart v. State, 33 S.W.3d 785, 793 (Tenn. 2000)). To determine whether a defendant case, has a balancing test. duty in a Id. at 479. particular courts apply a A defendant has “a duty to act with due care if the foreseeable probability and gravity of harm posed by defendant’s conduct outweigh the burden upon defendant to engage in alternative conduct that would have prevented the harm.” Id. (Tenn. 1995)). (quoting McCall v. Wilder, 913 S.W.2d 150, In making that determination, courts consider the foreseeable probability of the harm or injury occurring; the possible magnitude of the potential harm or injury; the importance or social value of the activity engaged in by defendant; the usefulness of the conduct to defendant; the feasibility of alternative, safer conduct and the relative costs and burdens associated with that conduct; the relative usefulness of the safer conduct; and the relative safety of alternative conduct. 13 153 McCall, 913 S.W.2d at 153 (citing Restatement (Second) of Torts §§ 292-93 (1964)). If Plaintiff were to show Air Serv had notice of Glass’ need for a wheelchair before his arrival, that notice would arguably make his injury foreseeable imposing a duty on Air Serv. and weigh in favor of For example, if the Northwest List showed that three wheelchairs were requested for Glass’ flight, the list would arguably show that Air Serv had notice of the need for one wheelchair more than the two requested by Patel before Glass arrived. (See Air Serv’s Statement ¶ 14.) Serv had notice of Glass’ request from the Northwest If Air List, arguably Air Serv also had a duty to provide a wheelchair at his arrival, even if Air Serv had received only two telex requests for that flight. The fatal flaw in Plaintiff’s argument is that she has not introduced the Northwest List. (See Pl.’s Resp. to Air Serv. 4 n.2.) Plaintiff argues that “it is reasonable to assume that Mr. Glass’ wheelchair request was provided to [Air Serv] through the [Northwest] Serv. 5.) ‘planned’ passenger list.” (Pl.’s Resp. to Air Although courts must draw all reasonable inferences in favor of the non-moving party, Matsushita, 475 U.S. at 587, those inferences must be based on “concrete evidence” in the record, Cloverdale, 869 F.2d at 937. 14 Plaintiff has not offered evidence to support the inference that she asks the Court to draw in her favor. List “has not Although Plaintiff notes that the Northwest yet been produced by any Defendant to this litigation,” (Pl.’s Resp. to Air Serv. 4 n. 2), she has not argued that Defendants prevented discovery on the issue or that the time permitted for discovery “was insufficient . . . to procure this information,” see Lindsey v. Detroit Entm’t, LLC, 484 F.3d 824, 830 n.7 (6th Cir. 2007). not offered evidence to support her Because Plaintiff has argument, she “has not carried [her] burden, nor has [s]he excused [her] failure to carry it.” See id. Without the Northwest List, the Court cannot conclude that Air Serv had notice of Glass’ wheelchair request before his arrival and cannot impose an affirmative duty based on that notice. Plaintiff alternatively argues that, even if Air Serv did not have notice of Glass’ wheelchair request, because Air Serv had “available wheelchair agents in close proximity . . . to his arrival gate at or about the time he arrived and had received three requests for wheelchair assistance,” Air Serv had a duty to provide Glass with a wheelchair before he left the gate area.7 7 Plaintiff argues that “there is no reason that [Air Serv] should have failed to provide a wheelchair” for Glass (see Pl.’s Mem. 7), citing Patel’s deposition testimony in which he states that a wheelchair never arrived at the gate (see Patel Dep. 36:3-36:8, ECF No. 133). Because whether Air Serv sent a wheelchair to the gate after Glass had left the area is immaterial, the Court construes Plaintiff’s Response as arguing that Air Serv had a duty to provide the wheelchair before Glass left the gate area. 15 (See Pl.’s dispute the Resp. exact to Air time Serv. Glass 6-7.) spent in Although the the gate parties area, Patel states in his deposition that Glass was at customer service for three or four minutes and in the gate area for five or six minutes. (Patel Dep. 34:10-34:15.) Crediting Plaintiff’s implied argument that the Court should add those numbers, Glass waited no more than ten minutes before leaving the gate area. (See id.) The Tennessee essence of law, airport an Plaintiff’s argument is wheelchair-services that, provider under has a duty in tort to provide a wheelchair to an arriving passenger within ten minutes of the passenger’s arrival. Plaintiff has not directed the Court to any authority for the proposition that Tennessee courts have imposed such a duty. Therefore, the Court must decide whether Tennessee would do so by considering whether “the foreseeable probability and gravity of harm posed by defendant’s conduct outweigh the burden upon defendant to engage in alternative conduct that would have prevented the harm.” See Biscan, 160 S.W.3d at 479. In applying that balancing test to determine whether a duty exists, “[t]he foreseeability of the harm is a key factor in the equation because, in test of negligence.’” general terms, ‘[f]oreseeability is the Downs, 263 S.W.3d at 820 (quoting West, 172 S.W.3d at 552); see Hale v. Ostrow, 166 S.W.3d 713, 716-17 16 (Tenn. 2005); see also Holland v. United States, No. 06-2700STA-tmp, 2009 U.S. Dist. LEXIS 90445, at *12 (W.D. Tenn. Sept. 30, 2009) (“This factor is so important that if an injury could not have been reasonably foreseen, a duty does not arise even if causation-in-fact has been established.”) “A risk is foreseeable if a reasonable person could foresee the probability of its occurrence likelihood probable.” of or if the person danger to the party was . on . . notice owed that a duty the is Downs, 263 S.W.3d at 820 (quoting West, 172 S.W.3d at 551) (internal quotation marks omitted). Although Plaintiff argues that it is “altogether foreseeable that . . . passengers who requested a wheelchair might be injured when they are compelled to walk to their destination without the air of a wheelchair,” Glass was not compelled to leave the gate area without a wheelchair. Mem. 6.) (Pl.’s The record before the Court demonstrates that Patel told Glass a wheelchair was on its way, but that Glass ignored Patel’s instructions and chose not to wait for the wheelchair to arrive. (See Air Serv’s Statement ¶¶ 19-20.) It was not foreseeable that Glass, who ostensibly needed a wheelchair to transport himself around the Airport, would choose to ignore Patel’s assurances that his wheelchair was on the way, leave the gate area after no more than ten minutes, attempt to ascend an escalator using his walker, and 17 fall and injure himself. Because Glass’ injury was not foreseeable, Air Serv had no duty to Glass. Even if Glass’ injury were alone does not create a duty.” foreseeable, “foreseeability Downs, 263 S.W.3d at 820 (citing McClung v. Delta Square Ltd. P’ship, 937 S.W.2d 891, 904 (Tenn. 1996)). If a risk is foreseeable, courts must consider other factors, including, inter alia, “the feasibility of alternative, safer conduct and the relative costs and burdens associated with that conduct; the relative usefulness of the safer conduct; and See McCall, 913 the relative safety of alternative conduct.” S.W.2d at 153. Plaintiff alternative conduct other to than that imply has would that not proposed have prevented Air Serv should particular Glass’ have injury, provided a (See Pl.’s Resp. to wheelchair before Glass left the gate area. Air Serv. 8.) any Because Plaintiff has not shown that Air Serv received a planned request for Glass, Plaintiff’s argument would essentially require Air Serv within minutes for any ten to have passenger a wheelchair who available requested one at arrival. When proposed alternative conduct would place an “onerous burden” on a defendant, Tennessee courts have concluded that the defendant has no duty to engage in that alternative conduct. See, e.g., Henry v. Bi-Dist. Bd. of Urban Ministry, Inc., 54 S.W.3d 287, 290 (Tenn. Ct. App. 2001). 18 Requiring Air Serv to provide a unplanned wheelchair request within would ten create a minutes tort of duty a to passenger’s provide a wheelchair three times as fast as Air Serv’s contractual duty under the Nothwest-Air Serv Contract. ¶ 13.) (See Air Serv’s Statement Although Plaintiff correctly notes that Glass was not a party to the Nothwest-Air Serv Contract (Pl.’s Statement to Air Serv ¶ 13), that contract provides some evidence of what is feasible under the circumstances. Because Plaintiff has not shown otherwise, the Court concludes that imposing the tort duty advocated by Plaintiff would place an “onerous burden” on Air Serv and similarly situated defendants. 290. See Henry, 54 S.W.3d at Because impatient passengers could leave the gate areas in less than ten minutes and could always reject wheelchairs no matter when they arrive, the increased burden on Air Serv would not necessarily increase safety. See McCall, 913 S.W.2d at 153. Plaintiff has not shown that the “foreseeable probability and gravity of harm posed by [Air Serv’s] conduct outweigh the burden . . . to engage in alternative conduct that would have prevented the harm.” See Biscan, 160 S.W.3d at 479. Tennessee courts would not impose an affirmative duty on Air Serv in this context.8 See id. Because Air Serv had no duty, Plaintiff’s 8 In addition to the foreseeability and alternative-conduct factors, when deciding whether to impose a duty courts consider “the possible magnitude of the potential harm or injury; the importance or social value of the activity engaged in by defendant; [and] the usefulness of the conduct to defendant.” See McCall 913 S.W.2d at 153. The potential harm or injury is great when 19 negligence claim against Air Serv must fail. See Bradshaw, 854 S.W.2d at 870 (“A decision by the court that, upon any version of the facts, there is no duty must necessarily result in judgment for the defendant.”) (citation omitted). Based on the foregoing, for the Court GRANTS Air Serv’s motion summary judgment on Plaintiff’s negligence claim. 2. Negligence Per Se To recover on the basis of negligence per se, a plaintiff Smith v. Owen, 841 S.W.2d 828, must establish three elements. 831 (Tenn. Ct. App. 1992); see also Harden v. Danek Med., Inc., 985 S.W.2d 449, 452 (Tenn. Ct. App. 1998). “First, it must be shown that the defendant violated a statute or ordinance which ‘imposes a duty or prohibits an act for the benefit of a person or the public.’” City of Smith, 841 S.W.2d at 831 (quoting Nevill v. Tullahoma, 756 S.W.2d 226, 232-233 (Tenn. 1988)). “Second, the proof must show that the injured party was within the class of persons whom the legislative body intended to benefit and protect by the enactment of that particular statute or ordinance.” Id. (citing Traylor v. Coburn, 597 S.W.2d 319, 322 (Tenn. Ct. App. 1980)). “Finally, the injured party must passengers who otherwise need wheelchairs attempt to move around an airport without them, as Plaintiff’s injury in this case demonstrates. However, Air Serv attempts to prevent that harm by providing wheelchair services to passengers through contracts with airlines like Northwest, demonstrating the social value and usefulness of Air Serv’s business. Because these factors are in equilibrium, they do not weigh in favor of or against imposing the duty Plaintiff advocates. 20 show that the negligence was the proximate cause of the injury.” Harden, 985 S.W.2d at 452 (citing Long v. Brookside Manor, 885 S.W.2d 70 (Tenn. Ct. App. 1994)). Plaintiff alleges that regulations promulgated under the Air Carrier Access Act of 1986 (“ACAA”), 49 U.S.C. § 41705, provide a basis for her negligence per se claim against Air Serv. (See “carriers” disability” Am. must are Compl. ¶ “ensure provided 30.) that Under qualified certain 14 C.F.R. § individuals services and 382.39, with equipment, including “assistance . . . in enplaning or deplaning.” C.F.R. § 382.39(a) (2008). a 14 Although that provision was removed from the Code of Federal Regulations effective May 13, 2009, it applies to Plaintiff’s action.9 See 73 Fed. Reg. 27,614, 27,665 (May 13, 2008); see also 14 C.F.R. § 382 (2010). Air Serv argues that it does not fall within the scope of the regulation because it is not a “carrier.” (See Air Serv.’s Mem. 11-12.) For purposes of the cited regulation, a “carrier” is a person that “undertakes, directly or indirectly, or by a lease or any other arrangement, to engage in air transportation.” See 14 C.F.R. § 382.5 (2008); see also 14. C.F.R. §382.3 (2010). Plaintiff does not address her negligence per se claim in her Response, and nothing in the record demonstrates that Air Serv 9 The cited provision was in effect in 2008, when Glass’ injury occurred, and in April 2009, when Plaintiff filed suit. See 14 C.F.R. § 382.39 (2009); 14 C.F.R. § 382.39 (2008). 21 is a person that “engage[s] in air transportation.” C.F.R. § 382.5 (2008). See 14 Air Serv is not a “carrier” within the meaning of 14 C.F.R. § 382.5 (2008), and 14 C.F.R. § 382.39 does not apply to Air Serv. Serv violated any Because Plaintiff has not shown that Air other statute or ordinance, Plaintiff has failed to establish the first element of her negligence per se claim. See Smith, 841 S.W.2d at 831. Therefore, the Court GRANTS Air Serv’s motion for summary judgment on that claim. 3. Breach of Contract To be enforceable under Tennessee law, a contract “must result from a meeting of the minds of the parties in mutual assent to the terms, must be based upon a sufficient consideration, free from fraud or undue influence, not against public policy and sufficiently definite to be enforced.” Jane Doe, et al. v. HCA Health Servs. of Tenn., Inc., d/b/a HCA Donelson Hospital, 46 S.W.3d 191, 196 (Tenn. 2001). Air Serv argues that Plaintiff has failed to establish the existence of an enforceable contract between Glass and Air Serv because she has not show the required meeting of the minds. (Pl.’s Mem. 12- 14.) Plaintiff does not address her breach of contract claim in her Response (see Pl.’s Resp. to Air Serv.), and nothing in the record establishes that she or Glass was a party to or thirdparty beneficiary of any contract with Air Serv. 22 Plaintiff admits that Glass was not a party to the contract between Air Serv and Northwest. (See Pl.’s Statement to Air Serv ¶ 13; Pl.’s Resp. to Air Serv. 8.) The uncontroverted record before the Court demonstrates that neither Plaintiff nor Glass had any communication with Air Serv before Glass’ fall. (Air Serv’s Statement ¶ 29; see also Glass Dep. 169:14-170:18, ECF No. 1367.) Because there was no transaction between Plaintiff or Glass and Air Serv, they did not engage in the meeting of the minds necessary Servs., Serv’s to 46 form S.W.3d motion for a at contract 196. summary in Tennessee. Therefore, judgment on the See Court Plaintiff’s HCA Health GRANTS Air breach of contract claim. B. Northwest’s Motion for Summary Judgment 1. Negligence To establish a claim for negligence, a plaintiff must prove, inter alia, that the defendant owed the plaintiff a duty of care. Bradshaw, 854 S.W.2d at 869. Northwest argues that Plaintiff has failed to show that it had a duty to Glass. (Mem. of Law in Supp. of Def. Northwest Airlines Inc.’s Mot. for Summ. J. 9-10, ECF No. 157-1.) Plaintiff argues that Northwest had a duty to provide Glass with a wheelchair because she requested a wheelchair for Glass when she purchased his ticket. Resp. to Northwest 8.) 23 (See Pl.’s Tennessee courts duties in contract. distinguish between duties in tort and See, e.g., Chase Manhattan Bank, N.A. v. CVE, Inc., 206 F. Supp. 2d 900, 906 (M.D. Tenn. 2002). Although a defendant’s act may give rise to an action both in tort and contract, to sound in tort, the “act constituting a contractual breach [must] also constitute[] a breach of a common law duty Id. (quoting Green v. Moore, No. independent of the contract.” M2000-03035-COA-R3-CV, 2001 WL 1660828, at *3 (Tenn. Ct. App. Dec. 28, 2001)). Based on these principles, regardless of whether Northwest had a contractual duty to provide Glass with a wheelchair, to bring a negligence claim, Plaintiff must show that Northwest had an independent tort duty to do so. See id. To establish a tort duty in these circumstances, Plaintiff must show that, under Tennessee law, an airline carrier has an affirmative duty to provide a wheelchair to any passenger who requests one within ten minutes of the passenger’s arrival. For the same reasons Plaintiff failed to show that Air Serv had a duty, she has failed to show that Northwest had any duty in tort to provide a wheelchair to Glass. VI.A.I. Plaintiff has not shown that See supra Section the “foreseeable probability and gravity of harm posed by [Northwest’s] conduct outweigh the burden . . . to engage in alternative conduct that would have prevented the harm.” See Biscan, 160 S.W.3d at 479. It was not any more foreseeable to Northwest than it was to Air 24 Serv that Glass, who ostensibly needed a wheelchair, would leave the gate area after no more than ten minutes, attempt to use an escalator using his walker, and fall and injure himself. Even if Glass’ injury were foreseeable, imposing a duty to provide a wheelchair to any passenger within ten minutes of his arrival would impose an even more onerous burden on an airline like Northwest than it would on Air Serv, a company whose primary business is providing passenger wheelchair services. See Henry, 54 S.W.3d at 290. Because Northwest wheelchair to Northwest must Therefore, the had Glass, duty Plaintiff’s fail. Court no See in negligence Bradshaw, GRANTS tort 854 Northwest’s to provide claim against S.W.2d motion a at for 870. summary judgment on Plaintiff’s negligence claim. 2. Negligence Per Se To recover under a theory of negligence per se, a plaintiff must first show, inter alia, that the defendant violated a statute or regulation that imposes a duty to act for the benefit See Harden, 985 S.W.2d at 452; of a person or the public. Smith, 841 S.W.2d at 831. regulation to establish Northwest, 14 C.F.R. § her Plaintiff negligence 382.39. (See relies per on the same se claim against Pl.’s Resp. 11-13.) Northwest does not argue that it is not a “carrier” within the meaning of 14 C.F.R. § 382.39. 25 See 14 C.F.R. § 382.39 (2008) (defining Instead, “carrier” Northwest for purposes argues that of 14 its C.F.R. failure to § 382.39). provide a wheelchair to Glass within ten minutes of his arrival at the gate does not constitute a violation of any duty imposed by that regulation. (Northwest’s Mem. 14-15.) The ACAA is not a strict liability statute. Adiutori v. Sky Harbor Int’l Airport, 880 F. Supp. 696, 701 (D. Ariz. 1995), aff’d 103 F.3d 137 (9th Cir. 1996). Although a carrier has a duty to provide assistance to a qualified individual, “a minimal delay in providing the requested assistance does not constitute a violation of the act.” Glatfelter v. Delta Air Lines, Inc., 558 S.E.2d 793, 796 (Ga. Ct. App. 2002) (citing Adiutori, 880 F. Supp. at 701). A plaintiff may not create a genuine issue of material fact simply by showing a delay. the regulations applicable here do See id. (“The ACAA and not specify how quickly requested assistance must be provided, but this does not mean that evidence of a delay of any length is sufficient to raise a jury issue.”) In Glatfelter, a well reasoned and persuasive decision from Georgia, a husband and wife requested a wheelchair for husband when their flight landed at the Atlanta airport. the Id. When one could not be procured immediately because of crowded conditions, they left the fifteen and twenty minutes. gate Id. 26 area after waiting between After the husband suffered an injury while attempting to descend an escalator, the couple sued their airline carrier, Delta Air Lines, Inc. Id. The Georgia Court of Appeals concluded that, “as a matter of law . . . under these circumstances a delay of 15-to-20 constitute a violation of the ACAA.” minutes did not Id. (interpreting ACCA regulation codified at 14 C.F.R. § 389.39(a)). Glass waited only ten minutes for a wheelchair to arrive before he left the gate area, at least five minutes less than Compare id., with (Patel Dep. the plaintiffs in Glatfelter. 34:10-34:15). Because the ACAA and its implementing regulations are not intended to impose strict liability, Adiutori, 880 F. Supp. at 701, that minimal delay does not create a genuine issue of material fact about whether Northwest breached its duty under 14 C.F.R. § 389.39(a), see Glatfelter, 558 S.E.2d at 796. As a matter of law, a ten-minute delay under these circumstances does not constitute a violation of the applicable ACAA regulation in this case. Because Plaintiff has not shown that Northwest violated a statute or regulation intended to protect a person or the public, Plaintiff has not established the first element of her negligence per se claim. Therefore, the Court GRANTS See Harden, Northwest’s 985 motion judgment on Plaintiff’s negligence per se claim. 3. Breach of Contract 27 S.W.2d for at 452. summary To be enforceable under Tennessee law, a contract “must result from a meeting of the minds of the parties in mutual assent to the terms, must be based upon a sufficient consideration, free from fraud or undue influence, not against public policy and sufficiently definite to be enforced.” Health Servs., 46 S.W.3d at 196. Plaintiff has failed to HCA Northwest does not argue that show that, when she purchased a Northwest ticket for Glass, she and Northwest formed a contract under which Northwest assistance to Glass. was required to provide wheelchair Instead, Northwest argues that it cannot be held liable for breach of contract because it delegated its contractual provide duty to Glass passenger (Northwest’s Mem. by contracting wheelchair 4.) Because with services Air at Serv was Air the an Serv to Airport. independent contractor, Northwest argues that it cannot be held liable for Air Serv’s failure to provide Glass a wheelchair before Glass left the gate area. (See id.) Northwest cites various cases in support of its argument. (See id.) that an However, those cases stand for the general principle employer is generally not liable negligence of its independent contractor. in tort for the See e.g., Waggoner Motors, Inc. v. Waverly Church of Christ, 159 S.W.3d 42, 53 (Tenn. Ct. App. 2004) (“Tennessee, like many jurisdictions, recognizes the principle that the employer of an independent 28 contractor is not automatically liable for physical harm caused to another by the contractor’s negligence.”); Carr v. Carr, 726 S.W.2d 932, 933 (Tenn. Ct. App. 1986) (“The general rule is that the employer is not ordinarily liable for the negligence of an independent contractor.”) (citations omitted). Those cases do not stand for the proposition that a party to a contract may avoid liability to its contractual counterparty by delegating its contractual duties to an independent contractor or other third party without the permission of the counterparty. “The hornbook principle of contract law is that the delegation of the performance of a contract does not, unless the obligee agrees delegating otherwise, obligor to the discharge obligee the for liability breach of of the contract.” Federal Ins. Co. v. Winters, No. E2009-02065-COA-R3-CV, 2010 WL 4065609, at *4 (Tenn. Ct. App. 2010) (citations omitted). The Nothwest-Air Serv Contract states that Air Serv “shall provide wheelchair passenger services” according to certain standards, but the contract does not state or imply that Air Serv agrees to assume Northwest’s contractual liability. (See Ex. C, at Ex. A- 1 § 1.1.) The language of the Nothwest-Air Serv Contract demonstrates that Northwest retained a duty to relay passengers’ wheelchair requests to Air Serv. (Ex. C, at Ex. A-1 § 7.1.1 (defining “planned” service requests). Northwest failed to relay Glass’ 29 request to Air Serv via telex, the usual procedure. Serv.’s Statement ¶¶ 6-9.) (See Air When combined with the contractual language, Northwest’s failure to relay Glass’ wheelchair request creates a genuine issue of material fact about whether Northwest breached its contractual duty to Glass. See Forrest Constr. Co., LLC v. Laughlin, No. M2008-01566-COA-R3-CV, 2009 Tenn. App. LEXIS 829, at *29 (Tenn. Ct. App. Dec. 9, 2009) (“Whether a party has fulfilled its obligations under a contract or is in breach of the contract is a question of fact.”) (citing Carter v. Krueger, Because 916 there Plaintiff’s S.W.2d is breach a of 932, 934-35 genuine issue contract (Tenn. of claim, Ct. App. material Northwest’s 1995)). fact about motion for summary judgment on that claim is DENIED. C. Pinnacle’s Motion for Summary Judgment 1. Negligence To establish a claim for negligence, a plaintiff must prove, inter alia, that the defendant owed the plaintiff a duty of care. Bradshaw, 854 S.W.2d at 869. had no duty to Glass. Pinnacle argues that it (Mem. of Law in Supp. of Def. Pinnacle Airlines Inc.’s Mot. for Summ. J. 8, ECF No. 158-1.) Plaintiff argues that, because she has established that Pinnacle was bound by her contract with Northwest, she has also established that Pinnacle had a duty to Glass. (Pl.’s Resp. to Pinnacle 5.) 30 As noted, Tennessee courts distinguish duties in tort from duties in contract. 906. had Chase Manhattan Bank, 206 F. Supp. 2d at Regardless of any contractual duty that Pinnacle may have to Glass, Plaintiff must show that Pinnacle had an independent duty in tort to provide Glass with a wheelchair. See id. Plaintiff does not argue that Pinnacle had any such (See Pl.’s Resp. to Pinnacle 5 (stating that, because duty. Pinnacle “was Pinnacle had bound a by duty Plaintiff’s and then contract” with “assum[ing] Northwest, arguendo that [Pinnacle] did owe Plaintiff a duty”).) Even if Plaintiff were to argue that Pinnacle had an independent duty in tort to provide Glass a wheelchair, that argument would fail for the same reasons that it failed support imposing a tort duty on Air Serv or Northwest. supra Sections IV.A.I, IV.B.I. “foreseeable probability to See Plaintiff has not shown that the and gravity of harm posed by [Pinnacle’s] conduct outweigh the burden . . . to engage in alternative conduct that would have prevented the harm.” Biscan, 160 S.W.3d at 479. See It was not any more foreseeable to Pinnacle than it was to Air Serv or Northwest that Glass, who ostensibly needed a wheelchair, would ignore the assurances of Patel, leave the gate area after no more than ten minutes, and injure himself while attempting to ascend an escalator. Even if Glass’ injury were foreseeable, imposing a duty to provide a 31 wheelchair to any passenger within ten minutes of his arrival would be as onerous to Pinnacle as it would to Northwest and Air Serv. See Henry, 54 S.W.3d at 290. Because wheelchair Pinnacle Pinnacle to Glass, must Therefore, fail. the had no Plaintiff’s See Court duty GRANTS in tort negligence Bradshaw, 854 Pinnacle’s to provide claim S.W.2d motion against at for a 870. summary judgment on Plaintiff’s negligence claim. 2. Negligence Per Se To recover under a theory of negligence per se, a plaintiff must first show the defendant violated a statute or regulation that imposes a duty to act for the benefit of a person or the public. 831. See Harden, 985 S.W.2d at 452; Smith, 841 S.W.2d at To establish her negligence per se claim against Pinnacle, Plaintiff relies on 14 C.F.R. § 382.39. 13.) Like Northwest, Pinnacle argues (See Pl.’s Resp. 11that its failure to provide a wheelchair to Glass within ten minutes of his arrival at the gate does not constitute a violation of any duty imposed by regulation. For the (Pinnacle’s Mem. 14-16.) same reasons Plaintiff failed to show that Northwest violated 14 C.F.R § 382.39, she has failed to show that Pinnacle violated that regulation. In comparison with the plaintiffs in Glatfelter, who left the gate area after waiting no more than twenty minutes, Glass left the gate area after 32 waiting only ten minutes for a wheelchair. (Patel Dep. 34:10-34:15). regulations Adiutori, are 880 not F. Compare id., with Because the ACAA and its implementing intended Supp. at to 701, impose that strict minimal liability, delay does not create a genuine issue of material fact about whether Pinnacle breached its duty under 14 C.F.R § 382.39, see Glatfelter, 558 S.E.2d at 796. these As a matter of law, a ten-minute delay under circumstances does not constitute a violation of the applicable ACAA regulation in this case. Because Plaintiff has not shown that Pinnacle violated a statute or regulation intended to protect a person or the public, Plaintiff has not established the first element of her negligence per se claim. Therefore, the Court Harden, See GRANTS Pinnacle’s 985 S.W.2d motion for at 452. summary judgment on Plaintiff’s negligence per se claim. 3. Breach of Contract To be enforceable under Tennessee law, a contract “must result from a meeting of the minds of the parties in mutual assent to the terms, must be based upon a sufficient consideration, free from fraud or undue influence, not against public policy and sufficiently definite to be enforced.” Health Servs., 46 S.W.3d at 196. HCA Pinnacle argues that it did not enter into an enforceable contract with Plaintiff because there was no meeting of the 33 minds and no consideration. (Northwest’s Mem. 4-6.) Plaintiff does not contest Pinnacle’s contention that neither she nor Glass communicated with Pinnacle before Glass arrived in Memphis and consideration to Pinnacle directly. that she never gave Instead, she argues that Pinnacle acted as Northwest’s agent and was therefore bound by Northwest’s contract with Glass. (Pl.’s Resp. to Pinnacle 3-5.) “The existence of an agency relationship is a question of fact under the circumstances of the particular case, and is determined by examining the agreement between the parties or the parties’ actions.” Boren ex rel. Boren v. Weeks, 251 S.W.3d 426, 432 (Tenn. 2008) (quoting White v. Revco Disc. Drug Ctrs., Inc., 33 S.W.3d 713, 723 (Tenn. 2000)) (internal quotation marks omitted). Although Plaintiff relies on various facts to show that Pinnacle acted as Northwest’s agent (see Pl.’s Resp. to Pinnacle 4), Plaintiff emphasizes that Pinnacle acted in accordance with the Nothwest-Air Serv Contract when providing wheelchair services to passengers on the Northwest flights it operated. (See Northwest Statement ¶ 25.) Based on that fact, Plaintiff argues that it “is simply not logical for [Pinnacle] to comply with the terms of the [Northwest-Air Serv Contract] unless [Pinnacle] was contractually obligated as a result of Plaintiff’s purchase of the airline request made directly to [Northwest].” 4.) 34 ticket and wheelchair (Pl.’s Resp. to Pinnacle Plaintiff has shown that Pinnacle had an agency or other contractual passengers relationship requested with Northwest wheelchairs from and Pinnacle, that, they when handled those requests according to the procedures in the Nothwest-Air Serv Contract. Those facts alone, however, do not necessarily show that Pinnacle had a contractual duty to Plaintiff or to Glass. Within the scope of its contractually bind a principal. authority, an agent may Johnson v. LeBonheur Children’s Med. Cntr., 74 S.W.3d 388, 343 (Tenn. 2002) (citing White, 33 S.W.3d at 724). However, the agent is not necessarily bound by all of its principal’s contractual obligations to third parties. When an agreement agency relationship determines the exists, scope of their the principal-agent relationship. See Roberts v. Iddins, 797 S.W.2d 615, 617 (Tenn. Ct. App. 1990) (citations omitted); see also White, 33 S.W.3d at 723. Whether such a relationship exists and the scope of the relationship are generally questions of fact. See Willis v. Settle, 162 S.W.3d 169, 183 (Tenn. Ct.App. 2004) (citations omitted). case, however, even assuming that Pinnacle had In this an agency relationship with Northwest, nothing in the record demonstrates that, as part of that relationship, Pinnacle assumed Northwest’s contractual duties to Glass. 35 Because Northwest’s Plaintiff has contractual not duties shown to that Glass Pinnacle or that assumed Pinnacle otherwise had a contractual duty to him or to Plaintiff, her breach of contract claim must fail. Therefore, the Court GRANTS Pinnacle’s motion for summary judgment on that claim. V. Conclusion For the motion for foregoing summary reasons, judgment the Court GRANTS on Plaintiff’s Air Serv’s claims negligence, negligence per se, and breach of contract. Court GRANTS Northwest’s motion for summary for The judgment on Plaintiff’s negligence and negligence per se claims and DENIES Northwest’s motion for summary judgment on Plaintiff’s breach of contract claim. The Court GRANTS Pinnacle’s motion for summary judgment on Plaintiff’s claims for negligence, negligence per se, and breach of contract. So ordered this 4th day of January, 2011. s/ Samuel H. Mays, Jr. SAMUEL H. MAYS, JR. UNITED STATES DISTRICT JUDGE 36
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