Kamnaut v. Delta Airlines, Inc.
MEMORANDUM AND ORDER denying in its entirety Delta Air Lines, Inc.'s 41 Motion for Summary Judgment. Ordered by Judge Sandra L. Townes on 12/22/2014. (Barrett, C)
IN CLERK'S OFFICE
U.S. DISTRICT COURT E.D.N.Y.
* DEC 2 3 2014 *
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
12-cv-4873 (SLT) (JO)
-againstDELTA AIR LINES, INC,
TOWNES, United States District Judge,
Kamnaut Kamnaut ("Plaintiff') brings this state law slip-and-fall action against defendant
Delta Air Lines, Inc. ("Delta"). Plaintiffs claims arise out of injuries he sustained on December
15, 2010 when he slipped on an allegedly icy, slippery surface in the Delta Connection Carrier
Area near Gate 25L in Terminal 2 of Kennedy International Airport while refueling an airplane.
Currently before the Court is Delta's motion for summary judgment, which asserts that Delta
cannot be held liable for Plaintiffs injuries because (1) the icy, slippery condition was open and
obvious, (2) the condition of the tarmac was not inherently dangerous, (3) Delta used reasonable
care to make the property safe, and (4) Plaintiff, not Delta, caused Plaintiffs injuries because
Plaintiff chose to work on the surface rather than report the unsafe condition to Delta. For the
following reasons, Delta's motion is denied.
Summary judgment is only appropriate where, considering "the record, including
depositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory answers, or
other materials," Fed. R. Civ. P. 56(c), "the movant shows that 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.
5 6(a). In determining whether there is a genuine issue of material fact, a court resolves all
ambiguities and draws all justifiable inferences in favor of the non-moving party. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). With this standard in mind, the pertinent facts,
undisputed, or where disputed considered in Plaintiff's favor, are as follows:
Plaintiff has been employed by Allied Aviation as an airplane fueler, which entails
driving fuel trucks and hooking up and disconnecting fuel hoses, since 1997 or 1998. (Def.'s
56.1 Stmt. ¶11 18-20.) On December 15, 2010, at 4:30 p.m., Plaintiff was injured when he slipped
and fell on the tarmac while refueling an airplane at the Delta Connection Carrier Area near Gate
25L in Terminal 2 of Kennedy International Airport. (Def.'s 56.1 Stmt. ¶ 2.) At the time, the
Delta Connection Carrier Area was leased and operated by Delta. (Barile Aff. ¶ 5.)
Plaintiff contends that he slipped and fell because the tarmac was covered by a
combination of dc-icing fluid, which has the consistency of oil, and ice. (Pl.'s 56.1 Stmt. pg. 12,
¶ 4; Raghubar Dep. 19:10-15.) He admits that he was aware of the slippery conditions, but
contends that he "worked on and about this condition because he was required and forced to do
so to perform his job duties." (Pl.'s 56.1 Stmt. ¶ 57; Pl.'s Dep. 43:15-44:15.) Plaintiff testified
that he told his supervisor, Leon Farmer, that his work area was slippery and covered in ice, and
that Farmer told Plaintiff that he would pass on this information to Delta. (Pl.'s 56.1 Stmt. ¶ 45;
Pl.'s Dep. 47:11-48:10.) One of Plaintiff's coworkers, Mukesh Raghubar, who was assigned to
work in the same area as Plaintiff on December 15, 2010, also testified that he mentioned the
slippery tarmac condition to Farmer. (Raghubar Dep. 25:9-15.)
Raghubar, who witnessed Plaintiff's fall, testified that as Plaintiff slipped, his foot went
up, and then he fell to the ground, hitting his buttocks and then head on the tarmac. (Pl.'s 56.1
Stmt. pg. 12, ¶ 3; Raghubar Dep. 31:22-25.) Immediately after the accident, Raghubar observed
a "shiny layer of ice and de-icing fluid" on the tarmac, which he described as "extremely
slippery." (P1.'s 56.1 Stmt. pg. 12, ¶11 3-4; Raghubar Dep. 32:2-6, 39:16-22.) After Plaintiff's
fall, he saw Delta personnel sprinkle salt on the area where Plaintiff had fallen. (Raghubar Dep.
Delta contends that it had twenty-five workers and a supervisor posted to the Delta
Connection Carrier Area on every shift, and that Allied Aviation - Plaintiff's employer - had
another four workers and a supervisor in the area. (Def.
56.1 Stmt. ¶J 14-15.) It contends that
safety protocols maintained by both Allied Aviation and Delta prohibit fuel truck drivers from
working on unsafe conditions and require workers to report unsafe conditions. (Def.'s 56.1 Stmt.
¶11 21, 32-34.) Delta contends that on the day in question, no complaint about the condition of
the tarmac was made to Delta.
Plaintiff disputes whether fuel truck drivers were trained to actually follow these
protocols. (Pl.'s 56.1 Stmt. ¶IJ 21, 68; P1's Dep. 49:16-23.) He testified that he was not allowed
to work "[o]nly if there was like [sic] heavy, heavy snow," and otherwise, the refuelers were
expected to work on icy conditions. (Pl.'s Dep. 49:16-50:3.) Raghubar testified that refuelers
are under time constraints to get their work done because of the nature of refueling airplanes with
strict departure times. (Pl.'s 56.1 Stmt. pg. 12, ¶ 5; Raghubar Dep. 23:5-8, 44:14-45:20.) He
also testified that in his opinion, "as an aviation fueler for ... 19 years, ... Allied Aviation
[should not] be sending fuelers to work in areas where planes have been de-iced" before the
areas are cleaned, because dc-icing fluid is "extremely slippery." (Raghubar Dep. 21:14-22:3.)
Plaintiff, a citizen of New York, initially commenced this action by Summons and
Verified Complaint dated November 14, 2011, in New York Supreme Court, Kings County,
against the Port Authority of New York and New Jersey ("Port Authority") and Delta. October
10, 2012, after Justice David B. Vaughan of the Kings County Supreme Court granted the Port
Authority's motion to dismiss all claims against the Port Authority, Delta, the only remaining
defendant - a corporation duly organized under the laws of Delaware with its principal place of
business in the state of Georgia - removed the action to this Court pursuant to 28 U.S.C. §§ 1441
1. Was the icy, slippery condition open and obvious?
It is Delta's position that it is entitled to summary judgment because the slippery
condition on the tarmac at Gate 25L was open and obvious. Under New York law, "landowners
owe people on their property a duty of reasonable care under the circumstances to maintain their
property in a safe condition." Tagle v. Jakob, 97 N.Y.2d 165, 168, 763 N.E.2d 107, 108-09
(2001). "Ordinarily, a landowner's duty to warn of a latent, dangerous condition on his property
is a natural counterpart to his duty to maintain his property in a reasonably safe condition."
Galindo v. Town of Clarkstown, 2 N.Y.3d 633, 636, 814 N.E.2d 419, 421-22 (2004). The New
York Court of Appeals has held that "a landowner has no duty to warn of an open and obvious
danger." Tagle, 97 N.Y.2d at 169. "The open and obvious doctrine is [grounded in] the idea that
a party may only be partially or not at all liable for an injury relating to a defect where the defect
was so 'open and obvious' that it is unreasonable for the injured party not to have taken note of it
and taken action to avoid the defect and thus the injury." Habecker v. KFC US. Properties, Inc.,
928 F. Supp. 2d 648, 655-56 (E.D.N.Y. 2013).
However, "[e]ven if... the claimed hazard ... was open and obvious as a matter of law,
[the defendant] would still [not be entitled to] summary judgment [in a case where the] plaintiff
is not claiming a violation of the duty to warn, but a violation of the broader duty to maintain the
premises in a reasonably safe condition." Westbrook v. WR Activities-Cabrera Markets, 5
A.D.3d 69, 71-72 5 773 N.Y.S.2d 38, 41-42 (1st Dept. 2004). Thus, "[e]vidence that the
dangerous condition was open and obvious cannot relieve the landowner of' its duty to
"exercise reasonable care under the circumstances to remedy the condition and to make the
property safe." Cupo v. Karfunkel, 1 A.D.3d 48, 52, 767 N.Y.S.2d 40, 43 (2d. Dept. 2003).
Indeed, the New York Supreme Court, Appellate Division, Second Department has cautioned
that "decisions which stand for the broad proposition that liability under a theory of common-law
negligence will not attach when the allegedly dangerous condition is open and obvious should no
longer be followed." Id. Rather, "proof that a dangerous condition is open and obvious does not
preclude a finding of liability against a landowner for the failure to maintain the property in a
safe condition but is relevant to the issue of the plaintiffs comparative negligence." Id.
Here, Plaintiff does not bring a claim for failure to warn. Rather, he contends that Delta
failed to maintain the area around Gate 25L in a reasonably safe condition. Therefore, even if
the icy, slippery condition were, as Delta contends, "open and obvious," this fact would not
relieve Delta of liability. Rather, the "open and obvious" nature of the hazard would go to
Plaintiffs comparative negligence.
2. Was the Condition of the Tarmac Inherently Dangerous?
Delta also contends that it is entitled to summary judgment because the condition on the
tarmac was not inherently dangerous. In Cupo, the Court explained that:
[i]n holding that the open and obvious nature of a condition is relevant to the issue
of the plaintiffs comparative negligence, we emphasize that this will be an issue
only in cases where it can reasonably be argued that a dangerous condition existed
on the property which the landowner was under a duty to remedy. We do not
suggest that a court is precluded from granting summary judgment to a landowner
on the ground that the condition complained of by the plaintiff was both open and
obvious and, as a matter of law, was not inherently dangerous.
Id. at 52 (emphasis in original). The Court explained that "[un such circumstances, the condition
which caused the accident cannot fairly be attributed to any negligent maintenance of the
property." Id. Delta seizes on this language, and asserts that it is entitled to summary judgment
because, in addition to being open and obvious, the icy condition "was not in any manner
inherently dangerous since it could have been remedied or an alternative position for [Plaintiff's]
work could have been made available had he told Delta of the icy, slippery condition." (Def.'s
Br. at 4-5.) However, Delta provides no citation in support of its curious proposition that the
tarmac condition could not have been inherently dangerous, as a matter of law, merely because it
was capable of being remedied. Rather, New York law provides that where "a dangerous
condition exists on the property," it is the landowner's duty to "exercise reasonable care under
the circumstances to remedy the condition and to make the property safe." Id. at 51.
Contrary to Delta's assertion, under New York law, "[w]hether a dangerous or defective
condition exists on the property so as to give rise to liability depends on the circumstances of
each case and is generally a question of fact for the jury." Zhuo Zheng Chen v. City of New York,
106 A.D.3d 1081, 1081, 966 N.Y.S.2d 177, 178 (2nd Dept. 2013). The parties do not dispute
that the surface of the tarmac was covered in a combination of de-icing fluid and ice, and that
both de-icing fluid and ice are slippery, potentially dangerous, substances. Indeed, after
Plaintiff's accident, Delta spread salt on the area to reduce the slipperiness of the tarmac.
Whether the condition of the tarmac was so dangerous that it gave rise to liability is a question of
fact for the jury to resolve. See Rector v. City of New York, 259 A.D.2d 319-20, 321, 686
N.Y.S.2d 426, 427 (1st Dept. 1999) (finding summary judgment inappropriate where "a jury
could readily conclude that ... [the] surface [wa]s considerably more slick, difficult to discern
and inherently dangerous than the natural state of the fallen snow" and thus, "represented a
greater hazard than that originally posed by the natural condition of the sidewalk.").
3. Did Delta use reasonable care to make the property safe?
Delta contends that it cannot be held liable because it exercised reasonable care in
maintaining the area around Gate 25L. Under New York law, "[w]here a plaintiff has presented
evidence that a dangerous condition exists on the property, the burden shifts to the landowner to
demonstrate that he or she exercised reasonable care under the circumstances to remedy the
condition and to make the property safe." Cupo, 1 A.D.3d at 51; Galindo, 2 N.Y.3d at 636 ("It is
well settled that a landowner has a duty to exercise reasonable care in maintaining his own
property in a reasonably safe condition under the circumstances."). "The nature and scope of
[the landowner's] duty and the persons to whom it is owed require consideration of the
likelihood of injury to another from a dangerous condition on the property, the seriousness of the
potential injury, the burden of avoiding the risk and the foreseeability of a potential plaintiff's
presence on the property." Galindo, 2 N.Y.3d at 636; see also Powers v. 31 E 31 LLC, No. 153,
2014 N.Y. Slip Op. 07084, N.E.3d ----, 2014 WL 5325471 (N.Y. Oct. 21, 2014) ("The
existence and scope of [a landowner's] duty is, in the first instance, a legal question for the
courts to determine by analyzing the relationship of the parties, whether the plaintiff was within
the zone of foreseeable harm, and whether the accident was within the reasonably foreseeable
Delta does not dispute that it owed Plaintiff a duty to maintain the property in a
reasonably safe condition, but asserts that it met its duty because it posted numerous employees
to the area and implemented a safety protocol requiring any and all of its workers to report
unsafe conditions to Delta. Delta contends that "[t]he comprehensiveness of the safety protocols
should not be questioned merely because plaintiff and others circumvented them." (Br. at 10).
Plaintiff disagrees, and contends that Delta's written protocol was not sufficient to satisfy
its burden of maintaining the area in a reasonably safe condition. First, Plaintiff asserts that,
regardless of whether Delta technically implemented a comprehensive written protocol for
maintaining safe working conditions on the tarmac at Gate 25L, the workers who prepared
airplanes for take-off were never trained to follow those protocols. Second, Plaintiff and his
colleague testified that because of the time constraints plane refuelers worked under, particularly
strict departure times, the protocols were unrealistic and could not be enforced, and the refuelers
were required to hurriedly refuel the airplanes even if the tarmac was icy. Moreover, Plaintiff
argues that Delta's protocols were clearly insufficient, given that Plaintiff was injured although
he and Raghubar did notify their supervisor that the area they were working in was slippery.
Finally, it is clear that Delta could have done more to lessen the risk of injury - immediately
after Plaintiff's accident, Delta employees salted the tarmac. This evidence sufficiently calls into
question whether Delta met its duty to keep the area near Gate 25L in reasonably safe condition.
Accordingly, because whether Delta met its duty is a question best resolved by a fact-finder,
summary judgment on these grounds is denied.
4. Did Plaintiff, not Delta, cause Plaintiffs injuries?
Finally, Delta contends that it is entitled to summary judgment because Plaintiff caused
his own injuries by (1) choosing to work on the slippery tarmac, rather than reporting the unsafe
condition to Delta and (2) choosing to stand with "his feet 'together' on the ice in one spot, not
apart so he would have some balance and be able to brace himself." (Def.'s Br. at 12-15.)
In 1975, New York abandoned contributory negligence and assumption of risk as
absolute defenses in favor of a form of comparative negligence. Custodi v. Town ofAmherst, 20
N.Y.3d 83, 87, 980 N.E.2d 933, 935 (2012). CPLR 1411 provides that:
In any action to recover damages for personal injury ... the culpable conduct
attributable to the claimant..., including contributory negligence or assumption of
risk, shall not bar recovery, but the amount of damages otherwise recoverable
shall be diminished in the proportion which the culpable conduct attributable to
the claimant or decedent bears to the culpable conduct which caused the damages.
CPLR 1411; Soto v. New York City Transit Auth., 6 N.Y.3d 487, 494, 846 N.E.2d 1211, 1216
(2006) (Smith, J, dissenting) ("Since the enactment of CPLR 1411 in 1975, it has been the
general rule that plaintiff's own culpability will not bar his claim, but will only be grounds for
apportioning fault. In several cases, however, we have recognized that a plaintiffs fault may be
so egregious in comparison to the defendant's that it supersede[s] defendants' conduct and
becomes the 'sole legal cause' or 'sole proximate cause' of the plaintiffs injuries.") (quotation
marks and citations omitted).
Having reviewed the evidence submitted by the parties, for the aforementioned reasons,
this Court concludes that a reasonable juror could find that Plaintiff's conduct was not the sole
cause of his injuries. Accordingly, under New York law, even assuming that Plaintiff was
partially at fault for his injuries, the amount of his comparative fault is relevant to the amount of
damages recoverable but does not bar recovery. Accordingly, Delta's motion for summary
judgment on the grounds that Plaintiff is comparatively at fault for his injuries is denied.
Delta's motion for summary judgment is denied in its entirety.
/s/ Sandra L. Townes
'SANDRA L. T- OWNES
United States District Judge
Brooklyn, New York
Dated: December 22, 2014
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