Mukarker v. City of Philadelphia et al

Filing 54

Chief Judge Patti B. Saris: MEMORANDUM and Order entered. For the foregoing reasons, the Court ALLOWS the Motion for Summary Judgment (Docket No. 31 ) on Count I. The Court DENIES the Motion for Summary Judgment (Docket No. 31 ) on Count II without prejudice to Defendant renewing its motion after limited discovery. (Geraldino-Karasek, Clarilde)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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Plaintiff,
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v.
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CITY OF PHILADELPHIA; PHILADELPHIA )
INTERNATIONAL AIRPORT; and
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OTIS ELEVATOR CO.,
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Defendants.
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___________________________________)
NICOLA MUKARKER,

Civil Action
No. 16-10355-PBS

MEMORANDUM AND ORDER
Date
Saris, C.J.
INTRODUCTION

Plaintiff Nicola Mukarker fell and injured his shoulder

while riding a moving walkway between terminals during a layover at Philadelphia International Airport. Plaintiff filed this
diversity action against Otis Elevator Company based on
negligent maintenance (Count I)1 and strict product liability
(Count II). Defendant now moves for summary judgment on both
counts. On Count I, Defendant argues that the negligence claim
is barred by Pennsylvania’s two-year statute of limitations for

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The City of Philadelphia and Philadelphia International Airport
were also named as defendants on Count I. The Court allowed the
city’s and the airport’s motion to dismiss for lack of personal
jurisdiction under Federal Rule of Civil Procedure 12(b)(2). See
Docket No. 21. Defendant did not join the motion to dismiss.
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tort claims. On Count II, Defendant argues that it cannot be
strictly liable because it did not design, manufacture, sell,
distribute, or install the moving walkway.
After hearing argument, the Court ALLOWS the Motion for
Summary Judgment on Count I on the ground it is time-barred. The
Court DENIES summary judgment on Count II without prejudice to
renewal after limited discovery.
FACTUAL BACKGROUND
When all reasonable inferences are drawn in Plaintiff’s
favor, the following facts are treated as undisputed except
where stated.
Plaintiff is a 67-year old Massachusetts resident. On
January 15, 2013, Plaintiff had a layover at Philadelphia
International Airport while returning to Massachusetts from the
Dominican Republic. Plaintiff planned, booked, and paid for his
trip in Massachusetts. When attempting to exit a moving walkway
(designated as “C17”) at the airport, Plaintiff fell over a
stuck luggage cart that blocked the walkway exit. As a result,
Plaintiff suffered a “traumatic massive rotator cuff tendon
tear.” Docket No. 41, Ex. A, ¶ 8. Plaintiff received medical
care, paid for by his state insurer: MassHealth.
Defendant is a New Jersey corporation with its principal
place of business in Connecticut. Defendant regularly conducts
business in both Massachusetts and Pennsylvania and maintains a
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registered agent in both states. Defendant was responsible for
maintenance of the moving walkway when Plaintiff tripped. The
City of Philadelphia Procurement Department solicited bids for
the facility maintenance contract that governs maintenance of
the moving walkway in question. Docket No. 33, Ex. F. Defendant
has submitted an affidavit that it did not manufacture, design,
distribute, sell, or install the moving walkway. Docket No. 33,
Ex. E, ¶ 5. Plaintiff seeks discovery on this assertion. Docket
No. 41-3.
Plaintiff filed suit in Middlesex Superior Court on January
13, 2016. Docket No. 1, Ex. A. The case was removed to this
Court on February 22, 2016. Docket No. 1.
DISCUSSION
Summary judgment is appropriate when there is “no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). To succeed
on a motion for summary judgment, the moving party must
demonstrate that there is an “absence of evidence supporting the
non-moving party’s case.” Sands v. Ridefilm Corp., 212 F.3d 657,
661 (1st Cir. 2000) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986)). The burden then shifts to the non-moving party
to set forth specific facts showing that there is a genuine
issue of material fact for trial. Quinones v. Houser Buick, 436
F.3d 284, 289 (1st Cir. 2006). A genuine issue exists where the
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evidence is “sufficiently open-ended to permit a rational
factfinder to resolve the issue in favor of either side.” Nat'l
Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.
1995). A material fact is “one that has the potential of
affecting the outcome of the case.” Calero–Cerezo v. U.S. Dep't
of Justice, 355 F.3d 6, 19 (1st Cir. 2004). In its review of the
evidence, the Court must examine the facts in the light most
favorable to the non-moving party and draw all reasonable
inferences in its favor. Sands, 212 F.3d at 661. Ultimately, the
Court is required to “determine if there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for
that party.” Id. (quotation marks omitted).
I.

Statute of Limitations on Negligence Claim

This motion presents a choice of law question: which
state’s statute of limitations applies to Plaintiff’s negligence
claim, Massachusetts or Pennsylvania? Because this Court is
sitting in diversity, it must apply the forum state’s choice of
law analysis. See Reicher v. Berkshire Life Ins. Co. of Am., 360
F.3d 1, 4 (1st Cir. 2004). The forum state, Massachusetts, uses
the choice of law analysis from the Restatement (Second) of
Conflict of Laws. See Nierman v. Hyatt Corp., 808 N.E.2d 290,
292 (Mass. 2004) (citing Restatement (Second) of Conflict of

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Laws § 142 (Supp. 1989)). The Restatement sets forth a twopronged analysis:
Whether a claim will be maintained against the defense
of the statute of limitations is determined under the
principles stated in § 6. In general, unless the
exceptional circumstances of the case make such a
result unreasonable:
(1) The forum will apply its own statute of
limitations barring the claim.
(2) The forum will apply its own statute of
limitations permitting the claim unless:
(a) maintenance of the claim would serve no
substantial interest of the forum; and
(b) the claim would be barred under the
statute of limitations of a state having a
more significant relationship to the parties
and the occurrence.
Restatement (Second) of Conflict of Laws § 142 (Supp. 1989). As
reframed by the Supreme Judicial Court: “Stated in affirmative
terms, a forum should apply its own statute of limitations
permitting the claim if it would advance a substantial forum
interest and would not seriously impinge upon the interests of
other states.” Nierman, 808 N.E.2d at 292 (internal quotation
marks omitted) (citing Restatement (Second) of Conflict of Laws
§ 142 (Supp. 1989)). A court must “consider (1) whether
Massachusetts has a substantial interest in permitting the
claims to go forward and (2) whether [the non-forum state] has a
more significant relationship to the parties and negligence
claim.” Id. at 293. In navigating the prong two analysis, the
“substantial interest” test is conducted “with some sensitivity”
to the “most significant relationship” test. See Stanley v. CF5

VH Assocs., Inc., 956 F. Supp. 55, 59 (D. Mass. 1997) (citing
Restatement (Second) of Conflict of Laws § 142, cmt. e (Supp.
1989)).
Both parties agree that Massachusetts’ statute of
limitations did not run before Plaintiff filed suit, so the
analysis is under Section 142’s second prong. Defendant argues
that Pennsylvania’s two-year statute of limitations for tort
claims, 42 Pa. Cons. Stat. §§ 5524(2),(7), applies to
Plaintiff’s negligence claim, because Pennsylvania has a more
significant relationship to the claim and Massachusetts has, at
most, a generic interest in the claim. Specifically, Defendant
argues that Pennsylvania was the site of the injury, the
location of the alleged negligence, and the walkway is
maintained by employees working from an office in Pennsylvania.
Plaintiff replies that a Massachusetts court would apply
Massachusetts’ three-year statute of limitations, Mass. Gen.
Laws ch. 260, § 2A, because the state has a substantial interest
in his claim. Plaintiff emphasizes that applying Massachusetts’
three-year statute of limitations would serve the Commonwealth’s
economic interest because MassHealth (a state health insurer)
paid for Plaintiff’s significant medical expenses.
Nierman is the key case on point. In Nierman, the married
plaintiffs, Massachusetts domiciliaries, filed suit in
Massachusetts more than two years after the wife suffered an
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injury at a Hyatt hotel in Texas. Texas’ two-year statute of
limitations had run. Massachusetts’ connections to the case were
its role as forum state and the plaintiffs’ domicile. The site
of the injury and the alleged negligent acts took place in the
non-forum state. Hyatt was not domiciled in Texas or
Massachusetts, but it operated in both states. The employees
closest to the incident were in Texas. In Nierman, the Court
held that there were more substantial connections to Texas, and
found that Massachusetts’ interest was limited to the “general
interest in having its residents compensated for injuries
suffered in another State.” 808 N.E.2d at 293–94. So too here.
In an attempt to distinguish Nierman, Plaintiff argues that
Massachusetts has a substantial interest because it provides his
health insurance. In some cases, courts have considered the
economic interest of Massachusetts in recouping benefits under
prong two of Section 142. See Elliston v. Wing Enterprises,
Inc., 146 F. Supp. 3d 351, 354 (D. Mass. 2015) (Saylor, J.)
(applying Massachusetts’ statute of limitations in a product
liability action, in part, because the Commonwealth likely would
recoup some of plaintiff’s state workers’ compensation benefits
via subrogation). See also Anderson v. Lopez, 957 N.E.2d 726,
729 (Mass. App. Ct. 2011) (applying Massachusetts’ statute of
limitations where motor vehicle accident occurred in Canada but

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defendants lived in Massachusetts and were insured by a
Massachusetts insurer).
The test, though, is not just whether Massachusetts has its
own economic interest in having its citizens compensated so that
it can recoup health benefits, but whether another state has a
“closer connection” than Massachusetts. In two unpublished
opinions, the Massachusetts Appeals Court held that the
financial implications of workers’ compensation and other
Massachusetts laws did not give the forum state a substantial
interest to overcome a more significant relationship to the
claim. See Lynch v. Stop & Shop Supermarket Co., LLC, 996 N.E.2d
500 (Mass. App. Ct. 2013) (applying Pennsylvania’s statute of
limitations although plaintiff received a Massachusetts workers’
compensation settlement and medical treatment in Massachusetts);
Gonzalez v. Johnson, 918 N.E.2d 481 (Mass. App. Ct. 2009)
(applying Connecticut’s statute of limitations although the
social and financial implications of the plaintiff’s injury
might be felt most strongly in Massachusetts).
The court must follow the walkway provided by Nierman.
Although Massachusetts may have a financial interest in
recouping health benefits paid by MassHealth, its interest falls
short when compared to Pennsylvania’s. There are “strong policy
judgments” underlying Pennsylvania’s statute of limitations.
Gustine Uniontown Assocs., Ltd. v. Anthony Crane Rental, Inc.
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L.P., 842 A.2d 334, 346 (Pa. 2004). Pennsylvania’s statute of
limitations is designed to “expedite litigation” and “discourage
delay,” purposes Pennsylvania courts deem sufficiently important
to strictly construe statutes of limitations. Id. (citing Ins.
Co. of N. America v. Carnahan, 284 A.2d 728, 729 (Pa. 1971); see
also Cunningham v. Ins. Co. of N. America, 530 A.2d 407, 409
(Pa. 1987) (“at some point, claims should be laid to rest so
that security and stability can be restored to human affairs”).
Furthermore, Pennsylvania has the most significant relationship
to the claim as the site of the injury and the state where the
alleged negligent maintenance was performed. Pennsylvania’s twoyear statute of limitations applies in this case and Count I is
time barred. Thus, summary judgment on Count I is ALLOWED.
II.

Strict Liability

Defendant put forth evidence that it did not manufacture
the C17 moving walkway. See Docket No. 33, Ex. F. Defendant also
submitted an affidavit stating on information and belief that it
did not design, distribute, install, or sell the C17 moving
walkway. See Docket No. 33, Ex. E, ¶ 6. The magistrate judge
stayed discovery on this issue. Targeted, proportional discovery
will be permitted with respect to the assertions in the
affidavit. Thus, summary judgment on Count II is DENIED as
premature.

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ORDER
For the foregoing reasons, the Court ALLOWS the Motion for
Summary Judgment (Docket No. 31) on Count I. The Court DENIES
the Motion for Summary Judgment (Docket No. 31) on Count II
without prejudice to Defendant renewing its motion after limited
discovery.

/s/ PATTI B. SARIS
Patti B. Saris
Chief United States District Judge

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