MEMORANDUM and ORDER

JOHN T. ELFVIN, Senior United States District Judge

Plaintiffs Ruth and Andrew Monter commenced this action against defendant Delta Air Lines, Inc. ("Delta") in New York State Supreme Court, Chautauqua County January 27, 2000 raising causes of action for negligence and loss of consortium respectively. On March 16, 2000 defendant removed this case to this Court pursuant to 28 U.S.C. § 1446 on the basis of diversity jurisdiction. Plaintiffs are citizens of New York, defendant is a Delaware corporation with its principal place of business in Georgia and the amount in controversy exceeds $75,000; therefore this Court has jurisdiction pursuant to 28 U.S.C. § 1332(a)(1). Defendant filed a motion for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure ("FRCvP") June 4, 2001. Oral argument on such motion was had October 26, 2001 and such has thereafter been before this Court for disposition.

Summary judgment "shall be rendered forthwith 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." FRCvP 56(c). The party moving for summary judgment must demonstrate to the court the "lack of a genuine, triable issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). A fact is material if it "might affect the outcome of the suit under the governing law" and is genuine if it "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 247-248 (1986). When ruling on a motion for summary judgment the court must view the facts in the "light most favorable to the opposing party." Adickes v. H.S. Kress Co., 398 U.S. 144, 157 (1970). However, the opposing party may not rest upon conclusory statements in his pleadings but "must set forth specific facts showing that there is a genuine issue for trial." FRCvP 56(e). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment" and, if "the evidence is merely colorable *** or is not significantly probative ***, summary judgment may be granted." Anderson, at 247-250. Furthermore, summary judgment must be granted when a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. In such a situation, there can be no `genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, at 322-323. Pursuant to Rule 56 of this Court's Local Rules of Civil Procedure ("LRCvP") those statements in defendant's Statement of Undisputed Facts ("Statement") are deemed admitted — to the extent that they are supported by the record, Holtz v. Rockefeller Co., 258 F.3d 62, 73-74 (2d Cir. 2001) — because plaintiffs failed to file a responding statement of disputed facts. Hannon v. Wilson Greatbatch, Ltd., No. 00-CV-0203E(F), 2002 WL 1012971, at *1 (W.D.N.Y. Apr. 24, 2002); Covelli v. Nat'l Fuel Gas Distrib. Corp., No. 99-CV-0500E(M), 2001 WL 1823584, at *1 (W.D.N.Y. Dec. 6, 2001). In addition to plaintiffs' failure to comply with LRCvP 56, neither party complied with LRCvP 7.1(e) because they did not file the required memoranda of law but rather included citations to legal authority and arguments only in their attorneys' affidavits.

Plaintiffs were passengers on Delta flight 1595 from Buffalo, N.Y. to Atlanta, Ga. June 18, 1998. When the Boeing 727 plane landed at Atlanta International Airport, plaintiffs remained seated while the other passengers disembarked. An unidentified passenger who had occupied the seat immediately in front of Mrs. Monter's seat opened an overhead compartment to retrieve her bag and, after struggling to do so for a few seconds, lost his grip on such and dropped it onto her head, neck and left shoulder resulting in serious injury to her. She states that the bag was a black golf bag measuring approximately three and one-half feet long by ten inches in diameter. Flight attendant Daniel Elkins, one of three on board flight 1595, was stationed by the boarding door and, although he had been responsible for visually inspecting all carry-on luggage to ensure that such did not exceed the allowable dimensions, he had not observed any passenger bringing a golf bag on board. Elkins stated that, due to their size, golf bags were not permissible carry-on items and he would not have allowed a passenger to bring such on board. Elkins also stated that none of the passengers had requested assistance in removing their baggage from the overhead compartments and the flight attendants had not noticed any passengers appearing to be in need of such assistance.

Plaintiffs contend that defendant was "careless and negligent in allowing a passenger to place such a large object as a set of golf clubs in the overhead compartment and in not assisting or aiding the passenger in removing those items from the overhead compartment." Compl. ¶ 7; see also Roney June 4, 2000 Aff. Ex I (Pls.' Am. Resp. to Interrog. No. 6) ("Delta was careless and negligent in allowing the passenger to put his golf bag in the overhead compartment and allowing him to remove the golf bag without any assistance and without warning to other passengers in the immediate vicinity."). Defendant seeks summary judgment on the basis that it did not breach any duty of care to plaintiffs. "New York law imposes a duty of reasonable care on [Delta] as a common carrier and as an owner of the airplane to take reasonable precautions to protect patrons from dangers which are foreseeable from the arrangement or use of their property and to protect its passengers from other travelers." Aponte v. Trans World Airlines, Inc., No. 94 Civ. 6337 (LMM), 1996 WL 527339, at *3 (S.D.N.Y Sept. 16, 1996). An airline's duty of care to its passengers requires it to, inter alia, ensure that carry-on luggage is being stowed in a reasonable manner. Ginter v. Trans World Airlines, Inc., 148 A.D.2d 787, 788 (3rd Dep't) (noting that" [o]bvious heavy items such as garment bags and bowling bags would not be permitted to be stored by passengers after boarding"), aff'd, 74 N.Y.2d 754 (1989). The duty to ensure that carry-on luggage is being stowed in a reasonable manner includes the duty "to stop passengers from stowing items which may be inappropriate for the overhead compartment***." Aponte, at *3 When an unusual item, such as a golf bag instead of normal carry-on luggage, is stowed in an overhead compartment, such can lead to "an unstable stowage condition" and "create a sufficient risk to raise a triable issue as to negligence." Barrera v. Am. Airlines, No. 98 CIV. 2685 (TPG), 2002 WL 1059160 *1 (S.D.N.Y. May 24, 2002) (plaintiff injured when golf club fell from overhead compartment after another passenger opened such); see also Aponte, at *1-3 (presence of a radio in the overhead compartment which fell onto and injured plaintiff when another passenger opened the overhead compartment constituted sufficient evidence of improper stowage to defeat summary judgment).

Based upon Mrs. Monter's statement that it was a three and one-half foot long by ten inch diameter golf bag which fell onto her from the overhead compartment which must be taken as true for present purposes and Elkins's statement that he did not observe any passenger attempting to carry such aboard the plane but that, had he observed any passenger attempting to so, he would not have allowed them to bring such a bag on board because based upon Mrs. Monter's description — it would have exceeded the allowable dimensions and, because a golf bag is an unusual item — not part of ordinary carry-on luggage —, this Court will deny defendant's motion for summary judgment. A reasonable jury might well conclude that, by allowing another passenger to board with and stow a golf bag in the overhead compartment and by not assisting with the removal of such therefrom when that passenger was struggling for a few seconds to do so, that defendant breached its duty to plaintiffs.

Accordingly, it is ORDERED that defendant's motion for summary judgment is denied and that the parties shall appear before Part III of this Court on the 19th day of July, 2002 at 3:00 p.m. or as soon thereafter as this matter may be heard to set a date for trial.