Opinion
98 Civ. 2685 (TPG)
May 23, 2002
OPINION
Plaintiff Agustina Barrera brings this action claiming that defendant's negligence caused her to sustain injuries when a golf club fell from an overhead stowage compartment and struck her forehead during a flight from Newark to Puerto Rico. Plaintiff initiated this action in a New York court. The action was removed to the federal court.
Defendant American Airlines moves for summary judgment. The motion is denied.
Facts
On April 24, 1997 plaintiff was a passenger traveling from Newark to San Juan on board American Airlines flight 1655. During the flight, a golf club fell from an overhead stowage compartment and struck plaintiffs forehead.
Juan Roman, who was also a passenger on American Airlines flight 1655 stated the following in an affidavit. Prior to takeoff, a flight attendant made an announcement about placing carry-on items in the overhead compartments and about the need for care because items in the overhead compartments might shift during the flight. A flight attendant also insured that all the overhead compartments were closed. Before landing in Puerto Rico, a passenger stood up and opened the stowage compartment above plaintiffs seat, and a golf club fell out.
Plaintiffs recollection of the incident is different. In an affidavit, she stated, "[n]o one opened the overhead compartment causing the golf club to fall. Immediately before and after my accident there was no one standing or reaching next to me toward the overhead compartment. If someone opened the compartment, they would have been right next to me after I was hit. In addition, no one ever told me that they opened the overhead compartment. I think that if someone had opened the overhead compartment causing my injuries, that person would have said something to me after the accident."
Plaintiffs affidavit, however, contradicts plaintiffs prior testimony during a deposition when she stated that she did not know how the golf club fell out of the compartment nor did she know if somebody opened the compartment.
The issue of how the compartment opened was explored at a hearing held on April 26, 2001. Plaintiff continued to contend that the compartment must have opened on its own because the aisle next to her was clear at the time the compartment opened. At the conclusion of the hearing, defendant was granted leave to supplement the record with the deposition testimony of Herminia Casiano, who was also on board American Airlines flight 1655 and is a litigant in a New Jersey action which arose out of the same incident, (Casiano v. American Airlines, Docket No. 99 Civ. 1841 (N.J. 1999)).
At her deposition, Casiano stated the following. Approximately one hour into the flight, an unidentified passenger in the seat directly behind Casiano stood up from his seat and without entering the aisle reached up and opened the overhead compartment. A golf club then fell from the compartment. The heavy part of the golf club struck Casiano on the right shoulder and the other end of the golf club struck another woman on the forehead.
Discussion
To succeed on a motion for summary judgment, the moving party must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court's task at the summary judgment stage is limited to discerning whether there are any genuine issues of material fact to be tried; the court is not to decide any such issues. Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1224 (2d Cir. 1994). The court "must view the evidence in the light most favorable to the non- moving party and draw all reasonable inferences in its favor." Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568, 572 (2d Cir. 1993). However, a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that contradicts the affiant's previous deposition testimony. Hayes v. New York City Department of Corrections, 84 F.3d 614, 619 (2d Cir. 1996).
Therefore, it must be taken as established fact, as shown by the affidavit of Roman and the deposition testimony of Casiano, that a passenger opened the overhead compartment and that the compartment did not open by itself. There is no effective contradiction of this by plaintiff.
Defendant asserts that plaintiff has failed to establish that defendant was negligent since the compartment did not open on its own as plaintiff had contended. However, the issue remains as to whether the presence of the golf club in the overhead compartment created an unstable stowage condition and an unreasonable risk that the golf club would fall out when the compartment was opened.
In Ginter v. Trans World Airlines, Inc. 148 A.D.2d 787 (3rd Dep't 1989), aff'd, 74 N.Y.2d 754 (1989), the court stated that the duty an airline owes to its passengers in regard to the stowage of carry-on items in the overhead compartments is to observe passengers to insure that they stow their baggage in a reasonable manner, to provide assistance with baggage stowage as requested, and to make a visual check to insure that overhead compartments are closed on take-off.
"New York law imposes a duty of reasonable care on [defendant], as a common carrier and as an owner of the airplane, to take reasonable precautions to protect patrons from dangers which are foreseeable from the arrangement or use of their property and to protect its passengers from other travelers." Aponte v. Trans World Airlines, Inc. 1996 WL 527339 3 (S.D.N.Y. 1996).
The fact that a fellow passenger opened the compartment "will not break the necessary chain of causation where [such action is] a normal and foreseeable consequence of the situation created by the defendant's negligence." Aponte, at 3, See also, Pardo v. Delta Airlines, Inc., 767 F. Supp. 26 (D. Puerto Rico 1991).
In Ginter, supra, plaintiff was injured on a flight from New York to California when a fellow passenger opened the overhead stowage compartment, causing a suitcase to fall and strike plaintiffs right hand as it rested on a tray table. In affirming the trial court's order granting defendant's motion to set aside a verdict in favor of plaintiff, the Appellate Division stated that the evidence presented by plaintiff included proof that there is no custom in the industry as to what is permitted or not permitted to be placed in the overhead compartments as long as Federal Aviation Administration requirements as to size are complied with and the total weight in a compartment does not exceed forty pounds. Since there was no evidence as to the weight of the suitcase other than plaintiffs own description of how it felt and there was proof that the suitcase did comply with FAA regulations as to size, the court found that the trial court was correct in its conclusion that, as a matter of law, plaintiff had failed to establish negligence.
In Pardo, supra, plaintiff was injured on a flight from San Juan to Miami when a fellow passenger opened the overhead stowage compartment, causing a camera case to fall and strike plaintiff on the back of her neck. In granting defendant's motion for summary judgment, the court stated that plaintiff had failed to come forward with any evidence upon which a finding of overloading or improper loading of the overhead compartment could be based.
In Aponte, supra, plaintiff was injured on a flight from San Juan to New York when a fellow passenger opened the overhead stowage compartment, causing a radio to fall and strike plaintiffs face. In denying defendant's summary judgment motion, the court found that the stowage of a radio in the overhead compartment was sufficient evidence of improper loading to create a triable issue as to whether defendant failed to fulfill its duty to observe that passengers stow their baggage in a reasonable manner.
These cases provide guidance for the resolution of the motion in the present case. of course, as shown by Ginter there is no negligence on the part of the airline when an overhead compartment is used for its normal and intended purpose — the stowage of luggage. The court in Pardo obviously considered the stowage of a camera case to be within the scope of normal usage. But an unusual item may create a sufficient risk to raise a triable issue as to negligence. Even a radio was deemed to be in this category in Aponte. It would appear that a golf club would go even further in posing a triable issue of negligence.
Conclusion
For the foregoing reasons, defendant's motion for summary judgment is denied.