Rodriguez v. British Airways et al

Filing 46

MEMORANDUM DECISION AND ORDER granting Defendants' motions for summary judgment. ( Ordered by Judge Brian M. Cogan on 12/11/2017 ) *forwarded for jgm. (Guzzi, Roseann)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------- X
:
VALENTINA RODRIGUEZ,
:
:
Plaintiff,
: MEMORANDUM DECISION AND
: ORDER
- against :
: 17-CV-03691 (BMC)
:
BRITISH AIRWAYS PLC and CATHAY
PACIFIC AIRWAYS LIMITED,
:
:
Defendants.
:
:
----------------------------------------------------------- X
COGAN, District Judge.
Plaintiff, an aircraft janitorial worker, suffered injuries when she tripped and fell while
boarding an aircraft as part of her employment duties at John F. Kennedy International Airport
(“JFK”). She brought this suit against Cathay Pacific Airways Limited (“Cathay”), which
operated the flight, and against British Airways PLC (“BA”), which provided aircraft cleaning
services to Cathay.
BA and Cathay have separately moved for summary judgment, contending that an expert
opinion upon which plaintiff relies is inadmissible under Federal Rule of Evidence 702. BA and
Cathay also asserted cross-claims against each other, and Cathay has moved for summary
judgment against BA, arguing that it is entitled to indemnification against plaintiff’s claims in
the event that it is found to be vicariously liable or to have acted negligently.
For the reasons discussed below, the Court grants defendants’ summary judgment
motions against plaintiff, and excludes the report of plaintiff’s expert. Because neither defendant
is liable to plaintiff, Cathay’s motion seeking indemnification from BA is denied as moot.

BACKGROUND
The following undisputed facts are viewed in the light most favorable to plaintiff.
Cathay and BA were parties to a Standard Ground Handling Agreement (the “SGHA”),
pursuant to which BA provided enumerated ground handling services to Cathay flights,
including interior cleaning of Cathay aircraft and control and operation of jet bridges used to
connect Cathay flights to the terminal. A jet bridge – familiar to most travelers – is the moveable
arm of the terminal building that connects a parked aircraft to the terminal. A height differential
between the jet bridge floor and the aircraft floor is necessary to allow for the opening of the
aircraft door; if the two were perfectly level, the aircraft door would not be able to swing open,
as its bottom would run against the jet bridge floor.
The height of the aircraft floor fluctuates as the weight of the aircraft changes with the
unloading of cargo and passengers. Jet bridges are equipped with an “auto leveler” that can keep
the height differential between the jet bridge floor and the aircraft constant. Generally, the edge
of the jet bridge (where it meets the aircraft) is painted bright yellow. BA uses internal training
policies and guidelines to guide the positioning of jet bridges against aircraft doors. Those
materials require a height differential of no greater than four inches. BA’s internal policy is to
set a height differential between two and four inches. Cathay’s door opening training materials
also show a height differential between the jet bridge and aircraft floors.
BA subcontracted with plaintiff’s employer, Ground Services International (“GSI”), to
provide cleaning services for Cathay aircraft at JFK. Plaintiff had worked as an aircraft cleaner
at JFK from 2002, and, at the time of the accident, cleaned approximately five to six aircraft each
day.

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On January 14, 2015, plaintiff, as part of a GSI cleaning crew, was boarding a Cathay
aircraft at JFK. Cathay did not have exclusive use of the gate at which the flight arrived. Other
airlines used the gate, and Cathay also operated flights from different gates.
While plaintiff was crossing from the jet bridge to the aircraft, the floor of the jet bridge
was approximately four inches below the aircraft floor. In attempting to enter the aircraft,
plaintiff tripped over the lip of the aircraft door and fell into the galley of the aircraft. At the
time of her fall, plaintiff was carrying cleaning materials in each hand. In one hand, she held a
mop, rags, and a spray bottle; in the other, a bag of duvet covers. Plaintiff was looking ahead,
and not down, as she attempted to enter the aircraft. Approximately nine or ten members of the
cleaning crew had already boarded the aircraft when plaintiff fell, and approximately 250
passengers and 18 crew members had deplaned the aircraft. No party has put forward evidence
of any incident with any of them. As a result of her fall, plaintiff suffered serious injuries.
DISCUSSION
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits ... show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party
has the burden of demonstrating that there is no genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
“When a motion for summary judgment is made and supported ... an adverse party may
not rest upon the mere allegations or denials of the ... pleading, but the adverse party’s response,
by affidavits or as otherwise provided in [Federal Rule of Civil Procedure 56(e) ], must set forth
specific facts showing that there is a genuine issue for trial.” St. Pierre v. Dyer, 208 F.3d 394,

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404 (2d Cir.2000) (quoting Fed.R.Civ.P. 56(e)). To defeat a motion for summary judgment, the
non-movant must come forward with specific evidence showing that a genuine issue of material
fact exists. West-Fair Elec. Contractors v. Aetna Cas. & Surety Co., 78 F.3d 61, 63 (2d Cir.
1996). A genuine issue of material fact exists only if “a reasonable jury could return a verdict
for the nonmoving party.” Anderson, 477 U.S. at 248; see also Donnelly v. Greenburgh Cent.
Sch. Dist. No. 7, 691 F.3d 134, 141 (2d Cir. 2012). As a result, “[w]here no rational finder of
fact could find in favor of the nonmoving party because the evidence to support its case is so
slight, summary judgment must be granted.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d
Cir. 2011) (internal quotation marks and citation omitted). However, it is well settled that on a
motion for summary judgment, the court must “construe the evidence in the light most favorable
to the non-moving party.” Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir.1999). At
summary judgment, “the court's review of the record is limited to facts that would be admissible
at trial.” Melini v. 71st Lexington Corp., No. 07 CIV. 701, 2009 WL 413608, at *3 (S.D.N.Y.
Feb. 13, 2009).
Plaintiff served on defendants an expert report by Dr. Carl Berkowitz. Plaintiff also filed
an affidavit by Dr. Berkowitz in support of her opposition to defendants’ motions for summary
judgment. Defendants moved to preclude Dr. Berkowitz’s opinion. Before turning to
defendants’ motions for summary judgment, the Court has to resolve the admissibility of Dr.
Berkowitz’s proffered testimony. See Donnelly v. Ford Motor Co., 80 F. Supp. 2d 45, 47-48
(E.D.N.Y. 1999) (“In determining a summary judgment motion, the court may first need to
determine the admissibility of expert testimony.”).
“The standards governing the admissibility of expert testimony are set forth in Rule 702
of the Federal Rules of Evidence, and are further clarified by Daubert v. Merrell Dow

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Pharm., 509 U.S. 579, 113 S.Ct. 2786 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.
137, 119 S.Ct. 1167 (1999).” Hilaire v. DeWalt Indus. Tool Co., 54 F. Supp. 3d 223, 233
(E.D.N.Y. 2014). Under Rule 702, a “witness ... qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion or otherwise if ... the
expert's scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue.”
Under Daubert, courts have a “gatekeeping responsibility” of “ensuring that an expert's
testimony both rests on a reliable foundation and is relevant to the task at hand.” 509 U.S. at
580. The proponent of the expert testimony bears the burden of establishing the admissibility of
such testimony…by a preponderance of the evidence.” Bee v. Novartis Pharm. Corp., 18 F.
Supp. 3d 268, 299-300 (E.D.N.Y. 2014). Here, defendants do not dispute Dr. Berkowitz’s
qualifications as an expert. Instead, their argument turns on the reliability of his methodology
and the helpfulness of his opinion to the fact finder.
An expert opinion must “be of assistance to the trier of fact in evaluating the evidence.”
Hilaire, 54 F. Supp. 3d at 242. Courts may exclude expert testimony that would complicate,
instead of assist, the fact finder’s decision on “a simple question for which” it would need no
help. United States v. One Parcel of Prop. Located at 31-33 York St., Hartford, Conn., 930 F.2d
139, 141 (2d Cir. 1991). Additionally, “[i]n order for expert testimony to assist the trier of fact
to understand the evidence or to determine a fact in issue, the testimony must not only be reliable
but must be relevant in that it ‘fits’ the facts of the case.” Ford Motor Co., 80 F. Supp. 2d at 50
(internal citations and quotations omitted). Accordingly, “[n]othing in either Daubert or the
Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to

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existing data only by the ipse dixit of the expert.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 137,
(1997).
Dr. Berkowitz’s opinion needlessly complicates the dispute between the parties and
improperly relies on standards that are inapplicable to the circumstances at issue here. His
opinion is therefore more likely to confuse the factfinder, rather than assist it. Dr. Berkowitz
relies on five standards: the General Duty Clause of the Occupational Safety and Health
Administration (“OSHA”); an Advisory Circular on Aircraft Boarding Equipment promulgated
by the Federal Aviation Administration (“FAA”); the American Society of Testing Materials’
(“ASTM”) Standard Practice for Safe Walking Surfaces; the International Air Transport
Association’s (“IATA”) Safety Audit of Ground Operations Standards (“ISAGO”); and safety
guidelines published by the American National Standards Institute (“ANSI”)). Each of these
recommendations or standards, he contends, compels the conclusion that the height differential
was unsafe. However, his reliance on each of these standards is problematic.
First, the OSHA standard merely requires an employer to “furnish to each of his
employees employment and a place of employment which are free from recognized hazards.”
This general and abstract requirement would not help a factfinder determine the narrow question
of whether the height differential between the jet bridge and the aircraft floor was a dangerous
condition. It does not support Dr. Berkowitz’s opinion. It simply poses the question.
Second, the FAA circular that Dr. Berkowitz cites specifically states that it is intended to
provide guidance “for the preparation of specification for devices to assist in the boarding of
passengers with mobility impairments.” Plaintiff, however, was an able-bodied non-passenger,
rendering this standard unhelpful and more likely to confuse than assist the factfinder.

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Third, the ASTM standard provides that “[a]djoining walking surfaces shall be made
flush and fair, whenever possible and for new construction and existing facilities to the extent
practicable.” That seems fair enough for architects constructing a building with rooms, hallways,
and stairwells, but defendants have explained, and plaintiff does not dispute, that a height
differential between the jet bridge and the aircraft floor must exist to permit door clearance.
Fourth, the IATA standards only require that procedures be in place “to ensure the
walking surfaces of passenger boarding bridges and/or stairs are inspected and free from
conditions that could cause injury to passengers or ground handling personnel.” It is undisputed
that BA had such procedures in place.
Finally, BA and plaintiff dispute if the ANSI standard is intended to address the needs of
people with disabilities or not, but even if it applies to the general public, that standard alone
(requiring slopes for changes in height between two surfaces beyond a specific threshold) is an
insufficient basis for Dr. Berkowitz’s conclusions.
In sum, what Dr. Berkowitz has done is take a number of safety standards that are either
inapplicable or, at best, hortatory and vague, and conclude that the height differential here was
excessive. It is a conclusion looking for grounds, rather than grounds leading to a conclusion.
This is a wholly inadequate basis on which to present his opinion to a finder of fact.
Turning to defendants’ motions for summary judgment, New York substantive law
applies in this diversity case. To establish a prima facie case of negligence under New York law,
a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach
thereof, and (3) injury proximately resulting therefrom. Lerner v. Fleet Bank, N.A., 459 F.3d
273, 286 (2d Cir. 2006) (internal quotations omitted).

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The threshold question, therefore, is whether defendants owed a duty to plaintiff to
protect her against or warn her of the allegedly dangerous condition – the height differential.
“The existence and extent of a duty is a question of law” that can be resolved at summary
judgment. Alnashmi v. Certified Analytical Grp., Inc., 89 A.D.3d 10, 13, 929 N.Y.S.2d 620, 623
(2nd Dep’t 2011). Although she does so somewhat opaquely, plaintiff argues that BA owed her
a duty of care under the theory of premises liability and that Cathay owed her a duty of care by
inviting her into a place of public assembly and by virtue of being a common carrier. For the
reasons discussed below, neither defendant owed plaintiff a duty that encompassed warning her
about or changing the height differential. This is because the differential was open, obvious, and
not inherently dangerous condition.
Generally, New York law provides that “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 (2001). However, a defendant in a premises liability action can
establish “its entitlement to judgment as a matter of law by demonstrating that the [alleged
dangerous condition] was open and obvious and not inherently dangerous.” Maraia v. Church of
Our Lady of Mount Carmel, 36 A.D.3d 766, 767, 828 N.Y.S.2d 525, 526 (2nd Dep’t 2007). See
also Glassberg v. Staples the Office Superstore E., Inc., No. 08-CV-2132, 2010 WL 3924682, at
*3 (E.D.N.Y. Sept. 13, 2010), report and recommendation adopted, No. 08-CV-2132, 2010 WL
3909206 (E.D.N.Y. Sept. 29, 2010) (“[T]here is no duty to protect or warn a customer against the
risk of a condition that is open and obvious and, as a matter of law, not inherently dangerous;
under such circumstances, the condition is a warning itself.”). In other words, the scope of a
defendant’s duty does not include protecting against open and obvious conditions that are not
inherently dangerous. The below analysis takes each prong in turn.

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First, the height differential between the jet bridge and the aircraft was open and obvious.
“A court may determine that a risk was open and obvious as a matter of law when the established
facts compel that conclusion and may do so on the basis of clear and undisputed evidence.”
Tagle, 97 N.Y.2d at 169 (internal citations omitted). Although this is typically a question of fact,
“a court may resolve this question when the established facts compel the conclusion that the
hazard was open and obvious.” Matteo v. Kohl's Dep't Stores, Inc., No. 09 CIV. 7830, 2012 WL
760317, at *7 (S.D.N.Y. Mar. 6, 2012).
A condition is open and obvious if it “could have been or should have been appreciated
by the user or [if it] can be recognized as a matter of common sense.” Stephen v. Sico Inc., 237
A.D.2d 709, 710, 654 N.Y.S.2d 449, 451 (3rd Dep’t 1997) (internal citations omitted).
Accordingly, the touchstone of analysis in holding a condition to have been open and obvious is
whether “it was readily observable through the use of one’s senses.” Saltz v. Wal-Mart Stores,
Inc., No. 10 CIV. 4687, 2012 WL 811500, at *7 (S.D.N.Y. Mar. 7, 2012). See also Brown v.
Metro. Transit Auth., 281 A.D.2d 159, 161, 721 N.Y.S.2d 56 (1st Dep’t 2001) (defendants had
no duty to warn of a danger “that [could have been] easily recognized or discovered by the
normal use of one's senses.”).
The extent to which a condition is distinguished from its surroundings is relevant when
deciding if it is open and obvious. See e.g. Glassberg, 2010 WL 3924682, at *1 (“Both the
handle and platform were silver in color, and the platform's wheels elevated it a few inches off of
the store’s black, carpeted floor.”) (emphasis added). For example, the court in Saltz held as a
matter of law that horizontal pipes on the ground of a parking lot were open and obvious, noting
that the pipes were painted a different color from the floor on which they lay. 2012 WL 811500,
at *7. Similarly, the court in Chaney v. Starbucks Corp., 115 F. Supp. 3d 380, 387 (S.D.N.Y.

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2015), held that a “white charger square offset against [a] store’s orange-colored floor, was open
and obvious.” (internal quotations omitted).
Significantly, a plaintiff’s actual observation of an open and obvious condition is
immaterial; the crucial inquiry is if the plaintiff could have seen it. See Glassberg, 2010 WL
3924682, at *5 (“[U]nder New York law, whether a plaintiff observed a condition prior to
tripping over it is immaterial to the question of whether the condition was open and obvious.”);
Matteo, 2012 WL 760317, at *8 (“[A] plaintiff's failure to see a hazard does not necessarily
preclude the entry of summary judgment in favor of a landowner.”).
Courts in New York also consider both “the reasonable expectations of the parties and
society generally.” Id. at *7. For example, the court in Cupo v. Karfunkel, 1 A.D.3d 48, 51, 767
N.Y.S.2d 40, 42-43 (2nd Dep’t 2003), granted summary judgment to the defendant, in part
because of the specific expectations of the plaintiff, noting that “the evidence submitted on the
motion established…that the plaintiff often traversed the sidewalk” on which she tripped
(emphasis added). Likewise, in similar circumstances to those alleged here, the court in Barakos
v. Old Heidelberg Corp., 145 A.D.3d 562, 563, 43 N.Y.S.3d 324, 325 (1st Dep’t 2016), granted
summary judgment to a defendant when the plaintiff “tripped over a step covered in dark carpet,
while exiting defendants’ restaurant.” There, the court noted that the “[p]laintiff testified that he
was aware that the step was there from his prior visits.” Id. The court in Glassberg, 2010 WL
3924682, at *1, also noted the number of times the plaintiff had visited the site of the dangerous
condition she alleged prior to her accident (“[Plaintiff] had been there between ten and twenty
times before this visit.”). The court in Chaney, 115 F. Supp. 3d at 388, looked to general,
societal awareness of a potentially dangerous condition when it noted that phone and computer
“chargers today are in fact ubiquitous in public places in this country… A customer in the

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seating area of [a coffee shop] would have every reason to expect charger cords belonging to
other customers to be in use, and potentially to rest on the floor.”
Here, the undisputed facts compel the conclusion that the height differential was open
and obvious. First, photographs of the site of the accident show that the height differential
between the jet bridge and the aircraft was immediately apparent; simply put, it was practically
impossible to miss. Teal paint on the exterior of the aircraft beneath the lip of the aircraft
doorway was set off from the dark color of the jet bridge floor, highlighting the difference in
level. Furthermore, the top surface of the lip of the entrance was chrome, as opposed to the dark
coloring of the floors of both the jet bridge and the aircraft. The area was also well-lit. Finally, a
photograph of the site taken several feet from the entrance to the aircraft shows that the height
differential was visible from a considerable distance down the jet bridge.
Second, plaintiff’s own deposition testimony indicates that she had crossed hundreds, if
not thousands, of jet bridges during the course of her employment at JFK. Five to six times a
day, five days a week, for nearly twelve years, plaintiff encountered height differentials between
jet bridge floors and aircraft doorways. The existence of a height differential could reasonably
be expected to come as no surprise to her; it was, instead, a ubiquitous fact of her daily
performance of her job. Third, the fact that plaintiff might not have seen the height differential
because she was looking ahead is immaterial; the inquiry is whether she could have seen the
condition. Given that the height differential was immediately apparent and that plaintiff
encountered similar differentials nearly daily for over a decade, the condition was open and
obvious.
The next question is whether the height differential was inherently dangerous. Courts in
New York routinely find that conditions similar to the one at issue here are not inherently

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dangerous and that defendants in such suits are entitled to summary judgment. See e.g., Bryant
v. Superior Computer Outlet, Inc., 5 A.D.3d 343, 344, 772 N.Y.S.2d 529 (2nd Dep’t 2004)
(“concrete wheel stop on which the injured plaintiff tripped while leaving a store” was not
inherently dangerous); Gibbons v. Lido, Point Lookout Fire Dist., 293 A.D.2d 646, 647, 740
N.Y.S.2d 440, 441 (2nd Dep’t 2002) (parking blocks over which plaintiff tripped were not
inherently dangerous); Chiranky v. Marshalls, Inc., 273 A.D.2d 266, 266, 708 N.Y.S.2d 699, 700
(2nd Dep’t 2000) (“bottom rail of a mobile clothes rack located in an aisle in the defendant’s
department store” on which plaintiff tripped was not inherently dangerous); Dominitz v. Food
Emporium, Inc., 271 A.D.2d 640, 640, 706 N.Y.S.2d 475, 475 (2nd Dep’t 2000) (“concrete curb
of an island in a parking lot owned by the defendant” on which plaintiff tripped was not
inherently dangerous).
Pedestrians navigate minor alterations in height and small obstructions similar to the one
at issue here as a matter of course. Buildings have steps and portions of floors may be raised or
lowered relative to other areas. The simple fact that two floor surfaces are not even does not
render the existence of a difference between them “inherently dangerous.” This conclusion is
buttressed by the fact that a height differential similar to that over which plaintiff tripped was
apparently safely navigated by approximately 250 passengers and crew disembarking the
aircraft, and then by approximately ten other cleaners boarding the aircraft. As discussed above,
plaintiff has boarded hundreds of aircraft via jet bridges during the course of her employment at
JFK. She points to no other instances in which she, or, indeed, anyone else, tripped while
traversing the height differential between a jet bridge and aircraft floor. Presumably, if the
condition were inherently dangerous, she could identify at least another instance in which
someone was harmed by a similar height differential.

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Therefore, because the condition was both open and obvious and not inherently
dangerous, BA owed no duty to plaintiff to warn her of or protect her against it under a premises
liability theory. 1
The Court need not resolve the question of whether Cathay exercised sufficient
ownership or control over the jet bridge to give rise to a duty to warn of or protect against the
height differential under a premises liability theory. Cathay correctly asserts that “liability for a
dangerous or defective condition on real property must be predicated upon ownership,
occupancy, control, or special use of that property.” Suero-Sosa v. Cardona, 112 A.D.3d 706,
707, 977 N.Y.S.2d 61 (2nd Dep’t 2013). Cathay argues that it had nothing to do with the jet
bridge, which was, it claims, wholly under the control of BA. However, because the height
differential between the jet bridge and the aircraft was both open and obvious and not inherently
dangerous, neither defendant can be found to have owed plaintiff a duty to warn her of or protect
her against it under a premises liability theory.
Plaintiff also claims that Cathay owed her a duty under a common carrier theory. As a
threshold matter, it is axiomatic that the duty of a common carrier applies only to passengers.
See Voccia v. United States, No. 12CV05909, 2017 WL 1194652, at *6 (E.D.N.Y. Mar. 31,
2017) (“Under New York law, a transportation provider, like an operator of a courtesy shuttle,
has a duty to exercise reasonable care for the safety of its passengers.”) (emphasis added);
Vumbaca v. Terminal One Grp. Ass'n L.P., 859 F. Supp. 2d 343, 370 (E.D.N.Y. 2012)

1

Similarly, if the jet bridge is interpreted as a means of ingress or egress from the aircraft (whether considered as a
place of public assembly or not), neither defendant owed plaintiff a duty to protect her against or warn her of the
height differential, because the differential was both open and obvious and not inherently dangerous. See Niles v.
1109-1113 Manhattan Ave. Partners, LLC, No. 13-CV-5427, 2015 WL 6674833, at *2 (E.D.N.Y. Oct. 30, 2015).

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(A common carrier has an obligation “to conserve the safety, convenience and comfort of its
passengers.”) (emphasis added).
Even if, however, plaintiff had somehow overcome this barrier to her common carrier
theory of liability, her argument fails. Although “the duty of care imposed on a common carrier
with respect to its passengers requires not only that it keep the transportation vehicle safe, but
also that it maintain a safe means of ingress and egress for the use of its passengers,” Bingham v.
New York City Transit Auth., 8 N.Y.3d 176, 180, 832 N.Y.S.2d 125, 127 (2007), New York
courts have declined to extend this duty of care to common areas in a multi-carrier facility. Diaz
v. Am. Airlines, Inc., No. 1:13-CV-7813, 2015 WL 4503649, at *7 (S.D.N.Y. July 23, 2015).
Instead, the law in New York is clear: common carriers have a duty to safely maintain “areas that
serve primarily for ingress and egress to a subway or other similar station that is served by a
single carrier.” Bingham, 8 N.Y.3d at 181 (emphasis added). Because the jet bridge was used
by several different airlines, Cathay’s duty as a common carrier did not make it liable for the
condition 2 of a means of ingress and egress – the jet bridge – used by other carriers, as well.
Finally, plaintiff contends that BA is not entitled to summary judgment because of
allegedly contradictory BA policies regarding height differentials. This argument is confused
and unconvincing. Plaintiff claims that the following assertions, contained in various BA
materials, are contradictory: 1) that a four-inch height differential is “optimal;” 2) that the height
differential between the jet bridge floor and aircraft door should be no more than four inches; and
3) that BA’s internal policy requires a height differential of between two and four inches. I see
no contradiction between these statements. They announce that the acceptable range for a height

2

As discussed above, the Court finds that condition to be open and obvious and not inherently dangerous.

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differential between a jet bridge and aircraft door is two to four inches; four inches is preferred;
and four inches is not to be exceeded.
CONCLUSION
Defendants’ motions for summary judgment are granted. The Clerk is directed to enter
judgment, dismissing the complaint.
SO ORDERED.

Digitally signed by
Brian M. Cogan

Dated: Brooklyn, New York
December 11, 2017

U.S.D.J.

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