Farley v. Greyhound Canada, et al
ORDER granting 27 Motion for Summary Judgment. The Clerk of Court is directed to close this case. Signed by Hon. H. Kenneth Schroeder, Jr. on June 25, 2009. (APG)
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
VICTOR FARLEY, Public Administrator of the County of Erie, as Administrator of the Estate of Andrew M. Mutizira, deceased, Plaintiff, GREYHOUND CANADA TRANSPORTATION CORP., et al., Defendants.
DECISION AND ORDER In accordance with 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct all further proceedings in this case, including entry of final judgment. Dkt. #9.
Currently before the Court is defendants', Greyhound Canada Transportation, Corp., Greyhound Lines, Inc., and Jan Bandachowicz, motion for summary judgment. Dkt. #27. For the following reasons, defendants' motion for summary judgment is granted.
BACKGROUND Plaintiff, Victor Farley, Public Administrator of the County of Erie, as Administrator of the Estate of Andrew M. Mutizira, deceased, commenced this action on or about December 23, 2002 in New York State Supreme Court, Erie County. Dkt. #1.
Thereafter, on or about April 29, 2003, the action was removed to the United States District Court for the Western District of New York on the basis of complete diversity of citizenship between the parties. Id. An amended complaint was served and filed on or about August 28, 2003 seeking damages for pain, suffering, death and pecuniary losses by reason of the defendants' alleged negligence, gross negligence, recklessness, and wanton disregard for the safety of the general public. Dkt. #12.
It is undisputed that on January 2, 2001, defendant Jan Bandachowicz was employed as a driver for Greyhound Canada Transportation, Corp. and/or Greyhound Lines, Inc. (hereinafter collectively referred to as "Greyhound") and was driving from Canada to the United States via the Peace Bridge. Dkt. #27, ¶ 7. On that same day, Andrew M. Mutizira (hereinafter, "the decedent"), purchased a Greyhound bus ticket for travel from Niagara Falls, Ontario, Canada to Buffalo, New York. Dkt. #12, ¶ 16. Plaintiff alleges that at an unspecified time on January 2, 2001, defendant Bandachowicz or an agent, servant or employee of Greyhound, "assisted [the decedent] into a compartment on the bus for the purposes of assisting [the decedent] in gaining entrance to the United States."1 Id. at ¶ 26.
With the exception of this allegation set forth in the amended complaint and a footnote in plaintiff's memorandum of law submitted in opposition to defendants' motion for summary judgment, the record is devoid of any evidence in admissible form with respect to the alleged assistance the decedent may have received in gaining access to the "compartment." Dkt. #12; Dkt. #29, n.1. -2-
When the bus arrived in Buffalo, New York via the Peace Bridge, the bus stopped at Immigration and all passengers on the bus disembarked. Dkt. #27, ¶ 8; Dkt. #27, Exhibit C, p.10. Defendant Bandachowicz then moved the bus approximately five meters and all the luggage was removed from the bus. Dkt. #27, ¶ 8; Dkt. #27, Exhibit C, p.11. Thereafter, at the direction of an Immigration official, defendant Bandachowicz again moved the bus forward a short distance. Id. When moving the bus forward the second time, defendant Bandachowicz heard something that he thought sounded like a transmission problem followed by a "boom, boom" sound. Dkt. #27, ¶ 9; Dkt. #27, Exhibit C, pp.47-48. Defendant Bandachowicz immediately stopped the bus and walked to the back of the bus where he saw change, shoes and a green passport on the ground. Dkt. #27, ¶ 9; Dkt. #27, Exhibit C, p.53. Another driver came to assist defendant Bandachowicz and saw the body of the decedent. Id.
Following the accident, the local police department and the United States Department of Justice (Immigration and Naturalization Service2) each conducted an investigation. The police report described the accident stating, "victim was a possible stowaway and was hiding underneath the bus when he got caught on the rear axles [sic] of the bus, causing death." Dkt. #27, ¶ 11; Dkt. #27, Exhibit D. The Erie County Medical Examiner's Office issued a Certificate of Death on January 3, 2001 and concluded that the manner of death was accidental and that the cause of death was "multiple blunt force injury to head, chest, right upper and left lower extremity." Dkt.
Now known as the Department of Homeland Security, Immigration and Customs Enforcement. -3-
#27, ¶ 12; Dkt. #27, Exhibit E. The United States Department of Justice investigation revealed that the decedent had attempted to enter the United States on January 1, 2001 at the Detroit International Bridge and was refused entry. Dkt. #27, ¶ 13; Dkt. #27, Exhibit F. The Department of Justice investigation further noted that the decedent was discovered "engaged in the rear axle of the bus." Dkt. #27, ¶ 14; Dkt. #27, Exhibit F. Finally, the Department of Justice investigation report stated, "[b]ased upon statements made by witness [sic] and the nature of [the decedent's] attempted entry into the United States, it is very unlikely that [the decedent] could have secure [sic] access to the rear compartment of the bus without the assistance of some other individual or individuals." Dkt. #27, Exhibit F.
DISCUSSION AND ANALYSIS Application of New York Law W here, as here, jurisdiction is based on diversity of citizenship of the parties, this Court must apply the substantive law of the forum state, to wit, New York.3 "Federal courts sitting in diversity cases will, of course, apply the substantive law of the forum State on outcome determinative issues." Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d Cir. 1994), citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
Defendants' memorandum of law submitted in support of the instant motion for summary judgment discusses the "jurisdictional and choice of law issues" associated with this case. The Court notes, however, that there is no dispute between the parties as to the jurisdiction, venue and choice of law applicable to this case. -4-
Summary Judgment Standard Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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). "In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party, and must give extra latitude to a pro se plaintiff." Thomas v. Irvin, 981 F. Supp. 794, 798 (W .D.N.Y. 1997) (internal citations omitted).
A fact is "material" only if it has some effect on the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; see Bryant v. Maffucci, 923 F.2d 979 (2d Cir.), cert. denied, 502 U.S. 849 (1991).
Once the moving party has met its burden of ?demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a
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