Opinion
Case No. 98-CV-75282-DT.
September 27, 2000.
MEMORANDUM OPINION AND ORDER
I. FACTS
Defendant Southwest Airlines brings this Motion for Summary Judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, alleging there exists no genuine issue of material fact in this premised liability action where Plaintiffs Ralph Limmer and his wire Myra Lirnmner claim Defendant negligently maintained its aircraft by allowing a dangerous or hazardous condition to exist, failing to correct the condition or to warn of its existence, and railing to make reasonable and proper inspections for the condition. Plaintiffs also brought a cause of action for nuisance.
Plaintiff alleges that, in early March 1998, Mr. Limnmer, while a passenger on a Southwest Airlines aircraft slipped and fell on "loose magazines on the floor of its airplane," and suffered bodily as well as emotional injuries. (See Complaint. ¶¶ 9-10.) Mr. Limmer and his companion, Edward Fisher, were on a flight from Detroit, Michigan to Tampa, Florida. (Lirnmer Dep. pp. 54- 56; Fisher Dep. p. 4) The flight arrived in Detroit from Chicago and Mr. Limmner and Mr. Fisher boarded the plane. (Limner Pep. p. 64, Waff Dep. p. 64.) The flight was to return to Chicago from Detroit, then to leave for Nashville, and then on to Tampa. (Limmer Dep. p. 64, Waff Dep. 64.)
The two men testified differently as to where they sat on the plane. Mr. Limmerrecalled that they sat in the last row of the plane, and that he sat in the window seat, with the window on his left side. He testified that Mr. Fisher sat in the aisle seat, and the middle seat was empty. (Limmer Dep. p. 58.) Mr. Fisher believes that the two sat toward the back or the airplane (with 2-3 rows behind them), but not in the last row. Mr. Fisher recalled that Mr. Limmer sat on the aisle seat, Mr. Fisher sat in the wind seat, and that there was rio middle scat as it was a two seat row. (Fisher Dep. pp. 7, 25.) Mr. Fisher remembered that an elderly woman and a younger woman sat behind them. (Fisher Dep. p. 36.)
Mr. Limmer testified that, during the flight leg from Detroit to Chicago, be left his seat to use the restroom which was behind him. Mr. Fisher did not stand up, but rather Mr. Limmer either stepped over him or Mr. Fisher moved his legs to the side. (Limmer Dep. pp. 61-62.) After landing in Chicago, some of the passengers exited the airplane, but Mr. Limmer, Mr. Fisher and others were not allowed to leave the plane because they did not have a long layover. (Limmer Dep. pp. 63-64.) Mr Limmer decided to go to the restroom again. (Limmer Dep. p. 64.) This is when Mr. Limmer allegedly fell. Mr. Limmer testified:
When I went to get up to go to the bathroom the first thing I did is grab the back of the seat ahead of me to help pull myself up because you don't have much space between the seat and your body there. And when I — evidently I picked my feet up, stood on the magazines and grabbed that seat. And I started to get up. And my feet went out from under me to the left because I was turning to get out. My feet went to the left on these magazines which was like ice. I meant they were just like standing on ice. And I fell back. . . .
Mr. Limmer testified that he did not feel the magazines under his feet prior to the fall, nor did he see the magazines until after the fall. (Limmer Pep. pp. 75-76) Mr. Limmer did not know how long the magazines had been there, nor did be know how many magazines he stood on but testified it was more than one, that it may have been "several, six, eight, ten." (Limmer Dep. pp. 75-76, 109.) Mr. Limmer did not pick up the magazines from the floor, but rather be kicked them somewhere. (Limmer Dep. 77.) Mr. Limmer did not report the incident to Southwest Airlines. (Limmer Pep. p. 76,) Mr. fisher testified as follows:
. . . I was on the window seat. As Ralph got up, something happened. and all of a sudden he come back at me, and, you know, he fell back over here this way in a twisting motion. Now, what happened, made him slip, is these type of magazines come from someplace behind us, and when he stepped on that, his feet just went out from under him.
Fisher Dep. p. 7. Mr. Fisher also testified that Limmer stepped on several magazines (four to five), and that the magazines were not there when they entered the seats. (Fisher Pep. pp. 7, 47.) Mr. Fisher stated, "No, we didn't see no magazines on the floor. No, we'd notice that very easily, you know." (Fisher pp. 8.) Neither Mr. Fisher nor Mr. Limmer asked the two women behind them if the magazines longed to them. (Fisher Pep. pp. 49-50.) Mr. Fisher testified that, after the incident, be picked up the magazines and put them in the seat back in front of him. (Fisher Pep. p. 48.)
Defendant submits the affidavit of Kathy Waff, the lead flight attendant on the leg of the flight on which Mr. Limmer claims he slipped and fell. Ms. Waif attests that she and her two co- flight attendants personally inspected the passenger cabin, row by row, and did not see any magazines laying on the floor or stowed improperly under the seat, nor did anyone report that magazines were improperly strewn on the floor (Waff Aff. ¶¶ 4- 5.)
Defendfendant now moves for summary judgment claiming that no genuine issue of material fact remains and that Soutwest Airlines is entitled to judgment as a matter jof law. Defendant argues there is no evidence that any employee of Southwest Airlines had notice of the alleged dangerous condition. Defendant also claims that the condition was open and obvious to a reasonable person in Plaintiff Limmer's position. Plaintiff Limmer does not address there arguments, but rather claims that under Michigan law, common carriers are held to a higher standard of care.
II . STANDARD OF REVIEW
Defendant seeks summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. Summary judgment is proper "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 determining whether there are issues of fact requiring a trial "the inferences to be drawn from the underlying acts contained in the [affidavits, attached exhibits and depositions] must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec, Indus., Co., Ltd v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). A "material" fact exists if ther is a "dispute over facts that might affect the outcome of the suit." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is "genuine" if "the evidence is such tat a reasonable jury could return a verdict for the nonmoving party." Id. at 248.
The moving party has the initial burden of showing there is no genuine issue of material fact. Celotex, Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment must be entered if the nonmoving party fails to provide sufficient evidence on an essential element to that party's case on which that part will bear the burden of proof at trial. Celotex, 477 U.S. at 322. The nonmoving party must present more than a mere scintilla of evidence and "may not rest upon the mere allegations or denials of his pleading, but. . . must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 US. at 249, 252 (internal citation omitted). If the nonmoving party fails to present evidence that opposes the moving party, the evidence submitted by the moving party will be taken as true. Id. at 248-49.
III. ANALYSIS
A. Negligence
A plaint must prove four elements to establish a prima facie case of negligence: 1) a duty owed by the defendant to the plaintiff; 2) a breach of that duty; 3) causation; and 4) damages. Schultz v. Consumer Power Co, 443 Mich. 445, 449 (1993). Duty can arise from a statute or a contract or by application of the basic rule of common law, which imposes an obligation to use due care or to act so as to not unreasonably endanger the person or property of others. Riddle v. McLouth Steel Products Corp., 440 Mich. 85, 95 (1992). If factual questions exist regarding what characteristics give rise to a duty are present, the issue must be submitted to the fact finder. Howe v. Detroit Free Press Inc., 219 Mich. App. 150, 155 (1996). A common carrier has a duty to its passengers to exercise the care of an ordinarily prudent common carrier. Frederick v. City of Detroit, 370 Mich. 425, 37- 38 (1963).
Liabiliy for injuries due to defective premises ordinarily depends on the power to prevent the injury and therefore rests primarily upon those who have control and possession, Paisley v. United Parcel Service, 17 Mich. App. 672, 674 (1969), citingDombrowski v. Gorecki, 291 Mich. 678 (1939) and Nezworski v. Mazanec, 301 Mich. 43 (1942). In Merritt v. Nickelson, 407 Mich. 544 (1980), the Michigan Supreme Court defined "possessor" as follows:
a) a person who is in occupation of the land with intent to control it, or,
b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with the intent to control it, or.
(c) a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b).Merritt, 407 Mich. at 552. See also, Weaver v. United States, 809 F. Supp. 527 (E.D.Mich. 1992); Quinlivan v. Great Atlantic Pacific Tea Co., Inc., 395 Mich. 244 (1975). Premises and Liability is conditioned upon the presence of both possession and control over the land. Michigan has consistently applied this principle in imposing liability for defective premises. Merritt, 407 Mich. at 552.
The duty that a possessor of land owes another person who is in the land depends on the latter person's status. stanley v. Town Square cooperative, 203 Mich. App. 143, 146 (1993). The status of a person on land that the person does not posses will be one of the following: 1) a trespasser; 2) a licensee; or, 3) an invitee. Is. at 147. It is well settled i Michigan that a premises owner must maintain his of her property in a reasonably safe codition and has a duty to exercise due care to protect invitees from conditions that might result in injury. Riddle, 440 Mich. a 90. A premises owner is not, however, an insurer of the safety of invitees. A possessor of land does not owe a duty to protect his invitees where conditions arise from which an unreasonable risk cannot be anticipated or of dangers that are so obvious and apparent that an invitee may be expected to discover them him/herself. Ed, at 94; Williams v. Cunniniham Drug Stores. Inc., 429 Mich. 495, 500 (1988). The invitee's knowledge of dangerous conditions may be properly considered in determining a praises owner's liability. Williams at 500. A possessor of land is not liable to his invitees for physical harm caused them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. Riddle, 440 Mich. at 94.
Michigan courts require a plaintiff to show either that the defendant created the unsafe condition by its wn negligence, that the defendant knew of the unsafe condition, or that the unsafe condition was of such a character or had existed for a sufficient length of time such that defendant should have known of the condition. Berryman v. K-Mart Corp., 193 Mich. App. 88, 92 (1992) (citing Serinto v. Borman Food Stores, 380 Mich. 637, 640-41 (1968)); McCune v. Meijer. Inc., 156 Mich. App. 561 (1986);Whitmore v. Sears, Roebuck Co., 89 Mich. App. 3,8 (1979).
In this case, is no dispute that Defendant owes a duty to Plaintiff, a business invites to exercise the car of an ordinarily prudent common carrier. However, Plaintiff has not shown that Defendant has breached its duty to Plaintiff or that it caused the injury to Plaintiff.
No evidence has been presented that a Southwest Airlines employee caused the magazines to he strewn on e floor. Likewise, there is no evidence that Southwest Airlines had actual knowledge that the magazines were on the floor. The affidavit of Ms. Waff establishes that she and her co-flight attendants personally inspected each and every row between each leg of the flight and did not see any magazines. Ms. Waff also attests that no one reported that magazines were inappropriately strewn across the floor.
Plaintiffs have not created a genuine issue of fact that the magazines were of such a character or existed for a sufficient period of time that Southwest Airlines should have known the magazines were on the floor. Neither Mr. Limmer, nor Mr. Fisher knew how long the magazines were not on the floor when they floor, Mr. Limmer and Mr. fisher both testified that the magazines were not on the floor when they boarded the airplain. The magazines were not on the floor when Mr. Limmer went to the restroom during the flight from Detroit to Chicago, and Mr. Limmer testified that the flight from Detroit to Chicago was a short one. (Limmer Dep. p. 78) mr. Limmer did not feel the magazines under his feet until he stood up after the airplane landed. He surprises that the magazines must have been stored under his seat.
Viewing this evidence in the light most favorable to Plaintiff, no evidence exists that Southwest Airlines knew the magazines were on the floor, caused the magazines to be on the floor, or that the magazines were on the floor for such a length of time that Southwest Airlines should have known of the condition. Plaintiff has failed to establish a prima facie case of negligence.
B. Plaintiff's Issues
Plaintiff does not address the issue of notice. Instead, Plaintiff claims that the cases relied upon by Defendant for premises liabiliy are inapplicable because Soudthwest airlines is a common carrier, Citing Northweast Airlines v. Michigan Employment SEC, appeal Bd., 378 Mich. 119 (1966). Plaintiff claims that this case is governed by Frederick, supra and Laney v. Consumers Power Co., 418 Mich. 180 (1983). Plaintiff argues these cases stand for the proposition that a common carrier has a higher standard of care somewhere between an ordinary person and an insured. Plaintiff claims that Southwest Airlines has a policy which prohibits magazines from being on the floor (Waff Affidavit and Attendant Garcia's testimony). Plaintiff also claims that because the magazines were on the floor, Defendant violated its policy and must be held liable. Plaintiff seems to argue that Defendant must be held strictly liable if magazines ate on the floor. However, as Defendant points out, both cases cited by Plaintiff reaffirm that a common carrier does not have a higher duty of care and is not an insurer of the safety of otheres. Rather, a common carrier must exercise the care of an ordinarily prudent common carrier. Frederick, 370 Mich. at 437-38.
Plaintiff has cited no support for the proposition that Defendant is liable under a strict liability theory. This is an ordinary premises liability cause of action involving a common carrier as discussed above. Plaintiff has presented no evidence that the airline had knowledge that the magazines were on the floor. Plaintiff has failed to establish a prima facie case of megligence based on a premises liability theory.
C. Nuisance
Plaintiffs also allege a nuisance claim. Nusiance is a condition. Liability for nuisance is predicated on the existence of a dangerous condition. Rosario v. Lansing, 403 Mich. 124 (1978). Liabilty for nusiance is not predicated on tortious conduct through action or incation on the part of those responsible for the condition, Buckeye Union fire Ins. Co. v. michigan, 383 Mich. 630, 636 (1970). Here, for the same reason set forth above regarding lack of notice on Defendant's part, Plaintiff has not shown that Defendant created a dangerous condition or that magazines on the floor of an airplane is a dangerous condition. Plaintiffs' nuisance claim must also be dismissed.
IV. CONCLUSION
For the reasons set forth above,
IT IS ORDERED that Defendant's Motion for Summary Judgment (Docket No. 15, filed October 19, 1999) is GRANTED.
IT IS FURTHER ORDERED that this case is DISMISSED with prejudice.
Dated: SEPTEMBER 27, 2000