United States: Mind The Gap: ADA Preemption Fails To End Case Involving A Passenger's Trip-and-fall Leading To Broken Knee While Disembarking A Flight At The Gap Between The Jet Bridge And The Aircraft

United States District Judge Gregory H. Woods recently denied summary judgment to Delta Airlines in Ferdinand Segarra v. Delta Airlines, Inc., No. 1:18-cv8135-GHW, 2020 U.S. Dist. LEXIS 103659, 2020 WL 3127879 (S.D.N.Y. June 12, 2020). The case arose from the trip and fall of a 79-year-old man exiting a Delta flight from JFK at San Juan, Puerto Rico. Delta, according to the decision, advanced four arguments for summary judgment: Puerto Rico's statute of limitations, plaintiff's inability to identify a defect that caused his fall, the open and obvious nature of the alleged defect, and ADA preemption.

With respect to the statute of limitations argument, Delta assumed the applicability of Puerto Rico's statute of limitations. The Court held that New York's statute applied because it is procedural law (procedural laws of the forum generally apply) and New York's borrowing statute does not apply against a New York resident such as Mr. Segarra.

Judge Wood rejected Delta's argument that Segarra had failed to identify what caused him to fall. He wrote that Delta's argument "convincingly paraphrase [d] a portion of Segarra's deposition" but concluded that "even the most cursory review of Segarra's deposition transcript makes obvious that Delta's summary is, at best, inaccurate—at worst, it is disconcertingly misleading." The section that the Court found so compelling, however, was Segalla's testimony that he "think[s]" his leg went "in the gap between the jet bridge and the plane...."

The Court acknowledged there is no duty under New York law to warn of an open and obvious condition. Yet, citing Chaney v. Starbucks Corp., 115 F. Supp. 3d 380, 387 (S.D.N.Y. 2015), the Court held that a landowner can be liable for an inherently dangerous condition even if it is open and obvious¹. The Court concluded that, giving plaintiff the benefit of all reasonable inferences and declining to decide an issue of fact, Delta was not entitled to summary judgment. Judge Wood also explained that there was competing evidence about the cause of the fall and that "Delta elected not to point the Court to any record evidence about the size of the gap at issue, or any evidence that the jet bridge and plane were properly aligned the day of the accident." He noted that Delta assumed the jet bridge and the airplane were properly aligned whereas "Segarra's negligence claim is premised on his theory that the jet bridge and plane were not properly connected the day of the accident."

Finally, the Court was not convinced as a matter of law that ADA (providing that a state "may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation") preemption precluded Delta's liability. The Court chose to apply the three-part test for ADA preemption of common law torts set forth in Rombom v. United Air Lines, 867 F. Supp. 214 (S.D.N.Y. 1994), which was written by Supreme Court Justice Sotomayor when she sat on the Southern District bench.

To be preempted under the Rombom test, the air carrier must show that the activity at issue implicates a "service"; plaintiff's claims directly, rather than tenuously, remotely, or peripherally, affect the airline service; and the underlying tortious conduct was reasonably necessary to the provision of the service. Judge Wood decided that the activity at issue directly implicated a service. Judge Wood, however, concluded that he could not find the third prong of the test free from genuine issues of disputed material fact.

The Court found there was an unresolved dispute whether it was the gap or something in the airplane itself that caused the fall, as well as an unresolved dispute whether the airplane was properly docked at the gate and positioned adjacent to the jet bridge. In denying summary judgment, Judge Wood was notably critical of Delta. He observed that "it is entirely possible that a detailed review of the record may reveal that there is no genuine dispute of material fact ...." But, he said, the detailed work necessary to marshal favorable facts and law "is Delta's job—not the Court's.... Judges are not ferrets!" Judge Wood sardonically wrote, "This is a case about Segarra's trip and fall. Delta's motion also tripped and fell ...." Trial in the case currently is scheduled to begin on November 2, 2020.

Footnote

1 Because of numerous courts' failures to follow The Elements of Style's guidance on when to use "which" and when to use "that," I had to drill down through several layers of case law to decide whether something that is open and obvious could ever be inherently dangerous. At Nelson v. 40–01 N. Blvd. Corp., 95 A.D.3d 851 (N.Y. App. Div. 2d Dep't 2012) ("While a landowner has a duty to maintain its premises in a reasonably safe manner ..., a landowner has no duty to protect or warn against an open and obvious condition that is not inherently dangerous ...."), I found the answer and concluded that it could.

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