Felixson v. Bombardier Transportation, Inc. et al

Filing 70

DECISION AND ORDER: Accordingly, on the basis of the record and law as set forth in the Order, the Court GRANTS Defendant's motion for summary judgment, Dkt. 66 . Ordered by Judge William F. Kuntz, II on 8/24/2015. (Fwd'd for judgment) C/M. (Brucella, Michelle)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------------)(
SCOTT FELl)(SON,

Plaintiff,

DECISION AND ORDER
12-CV-4399 (WFK) (LB)

-againstBOMBARDIER TRANSPORTATION
(HOLDINGS) USA, INC.,
Defendant.

---------------------------------------------------------------)(
WILLIAM F. KUNTZ, II, United States District Judge
Scott Felixson ("Plaintiff') brings this action against Bombardier Transportation
(Holdings) USA, Inc. ("Defendant") for physical injuries and property damage arising out of an
incident where the doors of a John F. Kennedy ("JFK") Air Train car built by Defendant closed
while Plaintiff was entering the car. Dkt. 5 ("Am. Compl.") at ii 31. Plaintiff alleges he suffered
physical and property damage as a result of Defendant's negligence, recklessness, and willful
conduct in the building, maintenance, and operation of the JFK Air Train. Id at ii 26. Defendant
now moves for summary judgment, arguing Plaintiff cannot establish the existence of a defect,
malfunction, or dangerous condition causing or contributing to Plaintiffs injuries, and further
that Plaintiff cannot show damages. Dkt. 66-1 ("Memo for SJ") at 9-1 7. Plaintiff contests both
of Defendant's arguments. Dkt. 67 ("Opp.") at 5-16. For the reasons set forth below,
Defendant's motion for summary judgement is GRANTED.

BACKGROUND
The following facts are either undisputed or described in the light most favorable to
Plaintiff, the non-moving party. See Capobianco v. City ofNew York, 422 F.3d 47, 50 n.1 (2d
Cir. 2005).
On the afternoon of August 31, 2009, Plaintiff attempted to board the JFK Air Train at
the Jamaica Station in Jamaica, New York. Dkt. 67-2 ("P's Rule 56.l Statement") at ii 1. When
the JFK Air Train automated car doors began to close, Plaintiff was standing "fully positioned"
on the platform, and continued walking through the doors even after they began closing. Id at ii

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2. After coming into contact with the Air Train car's doors, Plaintiff tripped over another
passenger's luggage and fell to the ground. Id. at ~ 3.
Plaintiff alleges this accident (the "Incident") was caused by the Air Train's defective
doors, which in tum were caused by "Defendant's negligent manufacture, design, operation, and
maintenance" of the Air Trains and doorways, "including negligence of Defendant's employees
and/or independent contractors." Id.

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5. Plaintiff further alleges he sustained injuries,

including exacerbation of pre-existing problems, to his neck, back, and right shoulder as a result
of the Incident. Dkt. 66-2 ("D's Rule 56.1 Statement")

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11; P's Rule 56.1 Statement at~ 11.

Additionally, Plaintiff alleges he sustained an estimated $1,100 worth of property damage to his
laptop as a result of the Incident. D's Rule 56.1 Statement at~ 18; P's Rule 56.l

Statement~

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Procedural History

Plaintiff, prose, filed the Complaint in this action on August 30, 2012, an Amended
Complaint on October 11, 2012, and a Second Amended Complaint on October 21, 2013. Dkt.
1 ("Complaint"); Am. Complaint; Dkt. 33 ("Second Am. Complaint"). On October 29, 2013,
Magistrate Judge Lois Bloom issued an order deeming the first Amended Complaint to be the
operative complaint in this action. Dkt. 36 at 2.
On September 8, 2014, Defendant filed a motion for summary judgment. Memo for SJ.
In its motion, Defendant argues that Plaintiff (1) cannot establish the existence of a defect,
malfunction, or dangerous condition causing or contributing to Plaintiffs injuries, and (2) cannot
prove damages. Memo for SJ at 9-17. Plaintiff disputes Defendant's motion and argues ( 1) the
videotape of the Incident raises material questions of fact as to whether the Air Train doors are
inherently hazardous and unsafe, (2) the videotape of the Incident shows the Air Train lacked a
warning to passengers as to the closing of the automatic doors, which would permit a jury

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finding of negligence, and (3) damages discovery was ordered to start after the Court ruled on
Defendant's summary judgment motion, and therefore failure to provide damages evidence at
this stage cannot be grounds for summary judgment Opp. at 5-16. Defendant further disputes
Plaintiffs claims in its reply. Dkt. 68 ("Reply") at 2-10. The Court will address each of the
issues raised in tum.

DISCUSSION
I.

Legal Standard
A court appropriately grants summary judgment if"the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter oflaw."
Fed. R. Civ. P. 56(a). No genuine issue of material fact exists "[w]here the record taken as a whole
could not lead a rational trier of fact to find for the non-moving party." Lovejoy-Wilson v. NOCO
Motor Fuel, Inc., 263 F.3d 208, 212 (2d Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)). The moving party must meet its burden by pointing to

admissible evidence in the record, including depositions, documents, affidavits, or other materials,
which it believes demonstrates the absence of a genuine issue of material fact. See Fed. R. Civ. P.
56(c)(l)(A), (2); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "In determining whether
summary judgment is appropriate, th[e] Court will construe the facts in the light most favorable to
the non-moving party and must resolve all ambiguities and draw all reasonable inferences against
the movant." Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (internal quotation marks and
citation omitted). The role of the district court is not to weigh the evidence and determine the truth
of the matter, but rather to perform "the threshold inquiry of determining whether there is the need
for a trial[.]" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

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If the moving party fulfills its preliminary burden, the burden shifts to the non-movant to

raise the existence of a genuine issue of material fact. Fed. R. Civ. P. 56(c)(l). Statements that
are devoid of specifics and evidence that is "merely colorable" are insufficient to defeat a
properly supported motion for summary judgment. Anderson, 477 U.S. at 249-250; see also

Bickerstajfv. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999) ("Statements that are devoid of any
specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for
summary judgment.") (internal citations omitted); Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.
1998). "A dispute about a 'genuine issue' exists for summary judgment purposes where the
evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. Cnty.

of Nassau, 524 F.3d 160, 163 (2d Cir. 2008) (quoting Guilbert v. Gardner, 480 F.3d 140, 145
(2d Cir. 2007)).
Ordinarily, the complaint of a prose plaintiff must be liberally construed and held to a
less rigorous standard of review than pleadings drafted by an attorney. Serby v. First Alert, Inc.,

et al., 09-cv-4229, 2011 WL 4464494, at* 1 (E.D.N.Y. Sept. 26, 2011). While Defendant argues
Plaintiff is not entitled to the latitude typically afforded pro se litigants because Plaintiff is a
licensed attorney, the Court need not decide this point because Plaintiffs claims fail even if
construed liberally. Memo for SJ at 17; Dkt. 66-6 at PDF 140-143. "[A] prose party's bald
assertion, completely unsupported by evidence is not sufficient to overcome a motion for
summary judgment." McGee v. Haigh, 13-CV-394, 2015 WL 1456612, at *5 (N.D.N.Y. Mar. 30,
2015) (D' Agostino, J.) (internal quotation marks and citations omitted). Plaintiff does not
produce evidence for his position and accordingly cannot overcome Defendant's summary
judgment motion. See sections II.A and II.B, infra.

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II.

Analysis
The Court has diversity jurisdiction over this action because Plaintiff is a citizen of and

domiciled in California, Defendant is a Delaware corporation having a principal place of
business in Pennsylvania, and the amount in controversy exceeds $75,000. Am. Complaint at~~
1, 5-10; Dkt. 37 ("Answer")

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2; Caterpillar, Inc. v. Lewis, 519 U.S. 61, 68 (1996) (stating that

28 U.S.C. § 1332(a) gives federal courts jurisdiction over cases "in which the citizenship of each
plaintiff is diverse from the citizenship of each defendant"). Because this is a diversity action
and the Incident occurred in New York, New York substantive law will govern the instant
motion. Casiano v. Target Stores, 06-CV-6286, 2009 WL 3246836, at *3 (E.D.N.Y. Sept. 24,
2009) (Gershon, J.) "Under New York law, in order to establish aprimafacie case of
negligence, a plaintiff must show: ( 1) that the defendant owed the plaintiff a duty of care; (2) that
the defendant breached that duty; and (3) that the plaintiff suffered damages as a proximate result
of that breach." Id. (internal citation omitted).
Plaintiff alleges Defendant caused Plaintiffs injuries "through the negligent,
recklessness, carelessness, willful and wanton behavior of the Defendant[] in the ownership,
operation, maintenance and control of [its] train[.]" Am. Complaint at~ 32. Defendant does not
deny the existence of a duty of care, but argues Plaintiff cannot prove a breach of that duty
because he "has failed to allege, much less establish with admissible evidence, any acts of
negligence or even a cause of the [I]ncident." Memo for SJ at 1. Defendant is correct.

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A. Plaintiff's Conclusory Statements Regarding the Door-Closing Mechanism Do
Not Create Issues of Material Fact.

Defendant argues there are no issues of material fact because Plaintiff "has not alleged
any negligent acts or omissions by [Defendant]" and "has not identified any purported dangerous
conditions, defects or malfunction[.]" Memo for SJ at 9. Instead, the evidence merely shows
Plaintiff was "positioned fully on the platform but continued walking toward the subject
doorway even after the doors had started closing." Id. All Plaintiff offers, Defendant argues, are
vague conclusory statements from Plaintiff himself and his designated expert, Carl Berkowitz,
Ph.D, that Defendant was negligent. Id. at 10-13.
In opposition, Plaintiff argues he has presented evidence that raise questions for the jury
on the issue of Defendant's negligence. Opp. at 5-12, 14-15. First, Plaintiff argues the
surveillance video of the Incident establishes the Air Train doors began to close seven seconds
after new passengers began to board; this, Plaintiff asserts, creates a triable issue of fact
regarding negligence because it took thirty-eight seconds for the passengers already on the train
to exit. Opp. at 6; Dkt. 66-6, Ex. B. at PDF 77 ("Incident Video l "). Plaintiff argues there is an
issue of material fact over "whether seven seconds is sufficient time to allow for passenger
boarding" and "whether seven seconds of boarding time is a safety hazard whether a human
conductor" (sic.). Opp. at 7. According to Plaintiffs own count, the doors were open for a total
of forty-five seconds (the first thirty-eight of which were taken up by passengers exiting, and the
next seven by passengers boarding) before closing. Id. After viewing the video, the Court
agrees with Plaintiffs forty-five second count. However, simply stating there was only a fortyfive second delay before the car doors closed is not sufficient to establish a material question of
fact regarding negligence. Plaintiff presents no evidence, other than his description of the
Incident and conclusory statements, as to why allowing forty-five seconds for passengers to exit
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and board is negligent as a matter of law or fact. Without anything further, Plaintiff cannot
create a triable issue of fact on the issue of Defendant's negligence. See McGee, 2015 WL
1456612, at *5.
Second, Plaintiff also attempts to argue he needs no direct evidence of Defendant's
negligence to survive summary judgement because the "[ e]vidence of dangerous conditions and
[D]efendant's negligence are plainly visible in the surveillance videos[.]" Opp. at 7. To support
his argument, Plaintiff cites to several cases that he claims hold circumstantial evidence can
establish negligence. Id. at 7-8 (citing Otis Elevator Co. v. Robinson, 287 F.2d 62, 64-66 (5th
Cir. 1961),, Markel v. Spencer, 171 N.Y.S.2d 770, 774 (4th Dep't 1958), and Hoggardv. Otis

Elevator Co., 276 N.Y.S.2d 681, 685-86 (N.Y. Sup. Ct. 1966)). Plaintiffs reliance on these
cases, however, is misplaced, because in all of these cases, there was a clear defect or dangerous
condition.
For example, in Robinson, the Fifth Circuit held that a maintenance company contracted
to maintain and repair hotel elevators could be found negligent based on circumstantial evidence.

Robinson, 287 F.2d at 64-66. In that case, a hotel employee was injured when an elevator
suddenly dropped "at extraordinary speed," and the maintenance company had received previous
reports of "substantially the same sort of' occurrences. Id. at 63-64. The Fifth Circuit found
these facts constituted sufficient circumstantial evidence to hold the company liable. Id. at 6566. Similarly, in Hoggard the plaintiff identified, and the defendant conceded, the defendant's
failure to take reasonable care to repair a plank switch. Hoggard, 276 N.Y.S.2d at 685. In

Hoggard, the defendant's own admission rendered it unnecessary for the fact-finder to rely on
circumstantial evidence to prove negligence. Id. Lastly, in Markel there was clear evidence a
bolt in the braking mechanism of an automobile had broken. Markel, 171 N.Y.S.2d at 774-775.

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As such, the jury had the right to infer, based on the circumstantial evidence of the broken bolt,
that the defendant was negligent. Id. at 775.
By contrast, in this case, Plaintiff is unable to point to any failure, break, or other defect
or dangerous condition related to the Air Trains operated by Defendant. Plaintiff simply asserts
the forty-five second time gap between the opening and closing of the Air Train doors is
sufficient to permit a jury to find Defendant liable for negligent manufacture, design, operation,
and maintenance of the Air Trains. Plaintiff is incorrect-this is insufficient. "While inferences
of negligence may be drawn from circumstantial evidence, those inferences must be the only
ones which reasonably could be drawn from the evidence presented." Molina v. United States,
11-CV-4097, 2015 WL 4394045, at *5 (E.D.N.Y. July 16, 2015) (Korman, J.) (internal quotation
marks, citations, and brackets omitted) (emphasis added). Plaintiff need not "positively exclude
every other possible cause" of the Incident "but defendant's negligence[,]" but Plaintiff must
provide evidence to "render those other causes sufficiently remote or technical to enable the jury
to reach its verdict based not upon speculation, but upon the logical inferences to be drawn from
the evidence." Hernandez v. Alstom Transp., Inc., 13 N.Y.S.3d 232, 234 (2d Dep't 2015)
(internal quotation marks and citations omitted). Plaintiff has not provided such evidence.
Instead, Plaintiff provides only his own conclusory opinion that the doors should have been open
longer and that there should have been a "useful visible door[-]closing signal." Opp. at 7.
Furthermore, the mere fact that the Air Train doors closed on Plaintiff and may have caused him
damage does not show negligence. See, e.g., Lezama v. 34-15 Parsons Blvd, 792 N.Y.S.2d 123,
124 (2d Dep't 2005) (citing Hunter v. Riverview Towers, 773 N.Y.S.2d 290, 291 (1st Dep't
2004)). Accordingly, Plaintiffs claim that the surveillance videos are evidence for Defendant's
negligent operation or maintenance of the door-closing mechanism cannot survive summary

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judgment. Plaintiff has failed to raise an issue of material fact, and the undisputed facts support
Defendant. Defendant's motion for summary judgment on this claim is hereby GRANTED.

B. Plaintiff's Conclusory Statements Regarding the Air Train Door-Closing
Warnings Cannot Survive Summary Judgment.
Defendant further argues there are no issues of material fact over Plaintiffs claim that
Defendant negligently failed to warn Plaintiff of the door closing, because Plaintiff "has not
come forward with any warnings that he suggests would have prevented the [I]ncident" or
identified any particular defect in the warnings. Memo for SJ at 9-10. Defendant is correct.
Plaintiff alleges "inadequacies in the substance of the warnings at the time of the Incident, as
well as [] inconspicuousness relating to the location and size of visual indicators." Opp. at 9.
However, Plaintiffs only evidence of this supposed "inconspicuousness" is a train
announcement Plaintiff himself quotes as saying "PLEASE STAND CLEAR ... THE DOORS
ARE CLOSING ... PLEASE HOLD ON[.]" Id. at 10. While Plaintiff claims this
announcement "overlapped" with another announcement, he does not allege the first
announcement was inaudible or unclear. Id. Plaintiff provides no evidence or any argument as
to why an announcement of "PLEASE STAND CLEAR . . . THE DOORS ARE CLOSING" is
insufficient. Once again, while Plaintiff need not "positively exclude every other possible cause"
of the Incident but Defendant's negligence, Plaintiff must provide evidence to "render those
other causes sufficiently remote or technical to enable the jury to reach its verdict based not upon
speculation, but upon the logical inferences to be drawn from the evidence." Hernandez, 13
N.Y.S.3d at 234 (internal quotation marks and citations omitted). Plaintiff has not provided any
such evidence, or indeed any argument. Accordingly, Plaintiffs claim that Defendant
negligently failed to warn passengers of the imminent door-closing cannot survive summary
judgment, and Defendant's motion for summary judgment on this claim is hereby GRANTED.

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C. Plaintiff Cannot Establish Damages Sufficient to Survive Summary Judgment.
Finally, Defendant argues Plaintiff has failed to submit admissible evidence regarding
damages. Memo for SJ at 15. Defendant argues (1) Plaintiff has conceded "a lengthy history of
pre-existing injuries and prior treatment for his right shoulder and back, and that X-rays and/or
MRis were taken of his cervical spine following accidents in 2002 and 2006[]"; (2) Plaintiff has
not disclosed a damages-related expert, his deadline to do so was January 24, 2014, and his
failure to do so precludes demonstrating the Incident caused Plaintiffs claimed physical
condition because of his pre-existing injuries; and (3) Plaintiff "did not disclose an expert or
provide any sort of documentation or support" for his claim of $1, 100 worth of damages to his
laptop computer. Id. at 15-17. In response, Plaintiff argues "[ d]damages discovery was ordered
to occur after summary judgment at the suggestion of the Defendant itself, therefore Defendant's
argument that failure to provide damages evidence is grounds for summary judgment has no
merit." Opp. at 16 (citing Dkt. 44 ("Scheduling Order l ")). Defendant replies that a superseding
scheduling order set a deadline for all discovery to be completed by February 28, 2014. Memo
for SJ at 9 (quoting Dkt. 49 ("Scheduling Order 2")). Defendant is correct.
While Magistrate Judge Lois Bloom ordered on December 23, 2013 that damages
discovery would begin after the Court ruled on a summary judgment motion or the case was
otherwise set for trial, her subsequent order of January 7, 2014 stated, "The parties shall
complete all discovery by February 28, 2014 ... No further request for an extension shall be
considered." Scheduling Order 2 (emphasis added).
Here, the respective summary judgment motion, opposition, and reply at issue were not
fully briefed until September 8, 2014. Memo for SJ; Opp.; Reply. As such, Plaintiff had
sufficient time to disclose a damages-related expert but failed to do so. Having missed his

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deadline for a damages-related expert, Plaintiff cannot now argue that the failure to provide
damages evidence is not grounds for summary judgment. Furthermore, expert evidence is
necessary to establish causation where an injury has multiple etiologies. Wills v. Amerada Hess
Corp., 379 F.3d 32, 46 (2d Cir. 2004). Here, Plaintiffs claimed injuries have multiple

etiologies, as Plaintiff himself has conceded he had pre-existing shoulder and upper back
conditions. Dkt. 66-6, Exhibit A, at PDF 18-25. However, Plaintiff has not submitted expert
evidence, or any evidence at all, on the question of damages, as required. Wills, 379 F.3d at 46.
Accordingly, Defendant's motion for summary judgment on the issue of Plaintiffs lack of
evidence for damages is hereby GRANTED
CONCLUSION
Accordingly, on the basis oftlie record and law as set forth above, the Court GRANTS
Defendant's motion for summary judgment, Dkt. 66. The Clerk of Court is respectfully directed
to serve this order on the pro se plaintiff and close this case.
SO ORDERED.

s/WFK

Dated:

August~2015
Brooklyn, New York

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