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Nora Farace and Anthony Farace v. American Airlinesinc.

June 21, 2012



(Plaintiffs‟ Partial Motion for Summary Judgment-- Dkt. no. 21; Defendant Clark County‟s Motion for Defendants. Summary Judgment-- Dkt. no. 24; Defendants‟ Joint Motion for Summary Judgment -- Dkt. nos. 25, 26)

Before the Court are Plaintiffs Nora and Anthony Farace‟s Partial Motion for Summary Judgment (dkt. no. 21), Defendant Clark County‟s Motion for Summary Judgment (dkt. no. 24), and Defendant American Airlines‟ Motion for Summary Judgment (dkt. no. 25), which Defendant Clark County ("the County") joins (dkt. no. 26). The Court also considered the relevant Oppositions, Responses, and Replies to these motions.


On May 27, 2008, Plaintiff Nora Farace and her husband Plaintiff Anthony Farace arrived at McCarran international Airport on American Airlines flight number 1417 from Chicago.*fn1 The airplane parked at Gate D-10. Plaintiffs disembarked from the aircraft and made their way onto the jet bridge (also referred to by the parties as the "jetway"), an enclosed, moveable connector which extends from the airport terminal to the airplane and allows passengers to board and disembark without going outside. Defendant American Airlines was a non-exclusive lessee of the jet bridge, which was owned by Defendant Clark County. (Dkt. no. 23-1 at 2-4). While walking on the jet bridge, Ms. Farace tripped and fell. When she fell, Ms. Farace was in or near the jet bridge‟s "gutter," an uncarpeted space at the edge of the jet bridge that connects the floor of the jet bridge to the wall. (Dkt. no. 24-6 at 4-5); (dkt. no. 23-2 at 2.) The gutter was marked with yellow lines indicating caution. (Dkt. no. 24-6 at 7.)

Plaintiffs filed a complaint in Nevada‟s Eighth Judicial District Court on April 15, 2010, alleging negligence, breach of the warranty of merchantability, strict products liability, breach of warranty for intended use, breach of duty to warn of dangerous defects, breach of contract (all on behalf of Ms. Farace), and loss of consortium (on behalf of Mr. Farace). (Dkt. no. 1-2, Ex. A.) Defendant American Airlines timely removed the case to this Court. (Dkt. no. 1.) Plaintiffs moved for partial summary judgment, asking the Court to rule that Defendant American Airlines was acting as a common carrier at the time of the incident and therefore owed Plaintiffs a heightened duty of care. (Dkt. no. 21.) Defendant Clark County filed a counter-motion for summary judgment. (Dkt. no. 24.) Defendant American Airlines also filed a counter-motion for summary judgment (dkt. no. 24), which Defendant Clark County joined (dkt. no. 26).

On December 2, 2011, Defendant American Airlines filed a Notice of Suggestion of Bankruptcy, and the proceedings in the case were stayed. (Dkt. no. 42.) The stay was lifted on April 9, 2012. (Dkt. no. 43.)


The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court. Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings, the discovery and disclosure materials on file, and any affidavits "show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is "genuine" if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for the nonmoving party, and a dispute is "material" if it could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248--49 (1986). Where reasonable minds could differ on the material facts at issue, however, summary judgment is not appropriate. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 516 U.S. 1171 (1996). "The amount of evidence necessary to raise a genuine issue of material fact is enough "to require a jury or judge to resolve the parties' differing versions of the truth at trial.‟" Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 288-89 (1968)). In evaluating a summary judgment motion, a court views all facts and draws all inferences in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).

The moving party bears the burden of showing that there are no genuine issues of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). "In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party‟s claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). Once the moving party satisfies Rule 56‟s requirements, the burden shifts to the party resisting the motion to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. The nonmoving party "may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists," Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and "must do more than simply show that there is some metaphysical doubt as to the material facts." Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (internal citations omitted). "The mere existence of a scintilla of evidence in support of the plaintiff‟s position will be insufficient." Anderson, 477 U.S. at 252.


Plaintiffs request that the Court hold that Defendant American Airlines is a common carrier as a matter of law.

A common carrier is a "commercial enterprise that holds itself out to the public as offering to transport freight or passengers for a fee." Black‟s Law Dictionary (9th ed. 2009). "Nevada case law [provides] that a common carrier "is bound to use the utmost care and diligence to secure the safety of its passengers.‟" Hulihan v. Reg'l Transp. Comm'n of S. Nevada, ___ F. Supp. 2d ___, 2:09-CV-01096-ECR, 2011 WL 2472685, at *6 (D. Nev. June 21, 2011) (citing Sherman v. Southern Pac. Co., 111 P. 416, 423 (Nev. 1910)). "Until the passenger reaches a place outside the sphere of any activity of the carrier which might reasonably constitute a mobile or animated hazard to the passenger, the rule of utmost care and diligence still applies." 1 Aviation Tort and Reg. Law § 7:7; see also Brandelius v. City & County of San Francisco, 306 P.2d 432, 436 (Cal. 1957). This heightened duty does not end absolutely when the passenger alights from the carriage, but rather extends until the passenger reaches a reasonably safe space. Parker v. City & County of San Francisco, 158 Cal. App. 2d 597, 603 (1958).

The parties do not dispute that Nevada law holds common carriers to a heightened duty of care. Defendant American Airlines, however, argues that it was not a common carrier in this instance because it was a non-exclusive lessee rather than the owner of the jet bridge. (Dkt. no. 23-1 at 4). Defendant cites Njoku v. Northwest Airlines, 806 F. Supp. 2d 1022, 1028 (E.D. Mich. 2011), to support this proposition. Njoku, like this case, involved a plaintiff who tripped and fell while walking on a jet bridge.*fn2 Id. at 1025. Defendant notes that in Njoku, no mention was made to the airline carrier‟s status as a common carrier, and the court granted summary judgment against the plaintiff for tripping over what was deemed an open and obvious threat. (Dkt. no. 25 at 5.) There are two problems with Defendant‟s analysis. First, it is unclear whether defendant Northwest owned the bridge in Njoku. Thecourt does not name Northwest as a lessee, and speaks about its potential liability in terms of that of a "property owner." Njoku, 806 F. Supp. 2d at 1028. Second, and most importantly, Michigan law differs from Nevada law in that it does not place a heightened duty of care upon common carriers. See W. Page Keeton, et al., Prosser and Keeton on Torts § 34 at 211 (5th ed. 1984) (Prosser & Keeton); Frederick v. City of Detroit, 121 N.W.2d 918, 921 (Mich. 1963). So Njoku provides no guidance here.

An Illinois case, Filipot v. Midway Airlines, 261 Ill. App. 3d 237, 238 (1994), is more persuasive. Like Nevada, Illinois holds common carriers to a heightened duty of care: "[a] common carrier for hire owes more than a duty of "reasonable care‟ to its passengers; it must exercise "the highest degree of care consistent with the practical operation of its vehicles.‟" Raube v. Am. Airlines, Inc., 539 F. Supp. 2d 1028, 1034 (N.D. Ill. 2008). In Filipot, the plaintiff slipped and fell on a natural accumulation of ice on the airport tarmac after disembarking from defendant‟s airplane. 261 Ill. App. 3d at 238. The court held that defendant airline was acting as a common carrier while the plaintiff was on the tarmac, because "the defendant‟s duty of highest care applies when passengers entrust the common carrier to protect them from dangers to which they may not otherwise have been exposed and from which they cannot otherwise protect themselves." Id. at 243. There, like here, the plaintiff "had no control over where defendant placed her . . . as she deplaned; she had no choice but to exit the plane where it stopped and proceed, on foot, to the terminal. As she did so, she slipped, fell, and injured herself." Id. As such, the "the passenger-carrier relationship had not ended, nor had defendant's duty to exercise the highest degree of care in protecting plaintiff." Id. Whether or not defendant airline owned the tarmac did not factor into the Filipot court‟s analysis and was not discussed by the ...

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