United States District Court,

S.D. New York.

Barbara GUNTHER, Plaintiff,


AIRTRAN HOLDINGS, INC. d/b/a Airtrain Airways, Inc., Defendant.

No. 05 Civ. 2134(MHD).

Jan. 24, 2007.


DOLINGER, Magistrate J.

Plaintiff, Ms. Barbara Gunther, filed her complaint on December 2, 2004 in New York State Supreme Court, asserting a personal-injury claim in negligence against defendant AirTran Holdings, Inc. (“AirTran”). Defendant thereafter removed the action to this court based on diversity on February 15, 2005.

Plaintiff seeks to recover damages for personal injuries she sustained as a result of a fall that occurred while she was in a motorized wheelchair traversing the jetway used for boarding AirTran Flight 367 at New York’s LaGuardia Airport on December 19, 2002. After the completion of discovery, defendant filed a motion for summary judgment on July 31, 2006.

I. The Complaint

Ms. Gunther alleges that defendant’s negligence caused the fall that occurred on the jetway. (Compl.¶¶ 6-12). Plaintiff further alleges that the fall resulted in severe physical and emotional distress. (Id. at ¶ 14).

II. The Defendant’s Motion for Summary Judgment

In support of its motion for summary judgment, defendant makes three vaguely identifiable arguments: First and foremost, defendant argues that premises liability is the only possible theory of recovery on these facts and that, based on this theory, the defendant did not owe a duty of care to the plaintiff because it is undisputed that AirTran did not own, and was not responsible for the maintenance of, the jetway at the time of the incident. (Mem. in Supp. of Def.’s Mot. for Summ. J. (“Def.’s Mem.”) 9). Next, the defendant maintains that it followed all appropriate practices and procedures for boarding passengers with disabilities at the time of the incident. (Id. at 12). Finally, the defendant contends that plaintiff’s behavior was the sole cause of her injuries. (Id. at 11-12). In so arguing, the defendant asserts that the jetway was not in a dangerous or defective condition and could not have caused the plaintiff’s fall, while still insisting upon premises liability as the only possible theory of recovery. (Id. at 10-11).

The defendant refers to plaintiff’s theory of recovery as an “assumed duty” theory, and it contends that AirTran did not have a duty to ensure plaintiff’s safe traversing of the jetway in her wheelchair. It adds that no action on the part of any employee, nor any airline procedure or independent safety guideline, gave rise to such a duty on these facts. (Reply Mem. 4). AirTran concludes by reiterating that summary judgment must be granted because the plaintiff has failed to demonstrate any issues of material fact as to the ownership of, and responsibility for the maintenance of, the jetway or as to the plaintiff’s behavior on the date of the incident. (Def.’s Mem. 14).

In opposing the motion, plaintiff first emphasizes that defendant’s argument is misplaced in its primary focus on premises liability and the attendant issue of jetway ownership. (Pl.’s Mem. Opp. Summ. J. (“Pl.’s Mem.”) 3). Indeed, plaintiff eschews any assertion of a premises-liability theory of recovery in her papers. Instead, she bases her negligence claim on an alleged breach of a duty independent of the ownership of the jetway, arising from the airline’s procedures relating to the boarding of passengers with disabilities, AirTran’s mission statement, its Contract for Carriage, and the actions of AirTran employees at the time of the incident. (Id. at 4-7). Plaintiff alleges that defendant’s employees failed to abide by “recommended standards and safety guidelines in their escorting of the plaintiff onto the jetway,” (Id. at 7), and she argues that “[t]here is an issue of fact as to whether defendant’s employees exercised reasonable care under the circumstances surrounding the incident.” (Id. at 12).

III. The Evidentiary Record

The plaintiff and defendant agree on many of the facts relating to the events in question. In our summary of the record, we rely principally on Ms. Gunther’s account and will note where the parties’ accounts differ in significant ways.

On December 19, 2002, Ms. Gunther traveled with her home care attendant to LaGuardia Airport. (Def.’s Rule 56.1 Statement (“Def.’s 56.1 Stmt”) ¶ 19). She was operating a motorized wheelchair at the time and commuted to the airport via public transportation. (Id.; Deposition of Barbara Gunther (“Gunther Dep.”), dated April 12, 2006, at 56, 66-67). Her flight was scheduled to leave from gate B4 between three and four o’clock in the afternoon. (Deposition of AirTran by Charlie Kantasingh (“Kantasingh Dep.”), dated May 4, 2006, at 50-52).1

Upon Ms. Gunther’s arrival at gate B4, an AirTran representative told her home care attendant that she could not accompany Ms. Gunther any further, and the attendant then left the airport. (Id. at 21; Gunther Dep. at 72).2 While waiting at the gate, Ms. Gunther repeatedly inquired as to whether she would be provided with an aisle chair-a specialized chair that airlines use to negotiate the narrow aisles of airplanes and assist wheelchair-using customers to their seats. (Kantasingh Dep. at 38-40). In response to plaintiff’s inquiries, an AirTran gate agent3 told her not to worry and that she would be the first person to board the plane. (Gunther Dep. at 68, 70-73; Def.’s 56.1 Stmt ¶ 21). Ms. Gunther unfastened the seatbelt of her wheelchair while she waited and made these inquiries, in anticipation of being transferred to an aisle chair before entering the jetway. (Gunther Dep. at 70, 71, 72; Def.’s 56.1 Stmt ¶ 22; Pl.’s Rule 56.1 Statement (“Pl.’s 56.1 Stmt”) ¶ 22).

The events occurring between the time that plaintiff unfastened her seatbelt and the time that she started her journey along the jetway to board the airplane are not entirely clear and are, to some degree, in dispute. Apparently, AirTran’s procedure in 20024 for boarding passengers with disabilities called for the gate agent to call “ITS”-a company that works with the airlines at LaGuardia and assists passengers with disabilities-whenever the gate agent learned that a wheelchair-using customer would be boarding a flight. (Kantasingh Dep. at 22-23). AirTran’s procedure, however, also allowed its employees to assist passengers in wheelchairs without the help of ITS if an ITS agent was not available and time constraints required the agents to accelerate the boarding process. (Id. at 25, 54). Mr. Kantasingh testified that, under AirTran’s procedure, if the agents needed to “get [a] plane out in the next twenty to twenty-five minutes, [they] do it themselves.” (Id. at 25). AirTran employees are trained in the proper procedure to assist passengers with disabilities when ITS agents are not available. (Id. at 9-16).

Mr. Kantasingh testified that on the date in question AirTran needed to get Flight 367 “out on time,” and that the agents therefore, at Mr. Kantasingh’s direction, began boarding Ms. Gunther without ITS agents. (Id. at 54). Despite this asserted time pressure, Ms. Gunther testified that the plane did not take off until about four hours after she boarded. (Gunther Dep. at 92).

After waiting about thirty or forty minutes at the gate for instructions from a gate agent, Ms. Gunther started down the jetway toward the airplane, accompanied by either one or two gate agents. (Id. at 68, 73; Kantasingh Dep. at 57). Although it is not expressly stated in the record, it is reasonable to infer that Ms. Gunther entered the jetway at the direction of a gate agent, since she had been waiting for AirTran’s assistance in boarding and was escorted by at least one gate agent. (See Gunther Dep. at 68, 73; Kantasingh Dep. at 57; Joyce Stmt).

Ms. Gunther did not receive an aisle chair before entering the jetway but used her own wheelchair to traverse it. (Gunther Dep. at 73-74). There is some inconsistency in the record as to the reasons for Ms. Gunther not having been transferred to an aisle chair before entering the jetway. Mr. Kantasingh testified that, under the 2002 AirTran standard procedure, a passenger in a motorized wheelchair would “drive themselves” along the jetway and be transferred to an aisle chair only at the entrance to the aircraft. (Kantasingh Dep. at 11-12, 38). According to his testimony, the gate agents planned to transfer Ms. Gunther at the aircraft door, rather than at the gate, because that was the standard procedure.

This comports in part with the U.S. Architectural & Transportation Barriers Compliance Board’s (“ATBCB”) guidelines-cited by the plaintiff’s expert-which state that “[p]assengers who use wheelchairs normally travel down the skybridge in standard-sized wheelchairs.” (Preliminary Report of Mr. Len McCuen (“Pl.’s Exp. Rprt”) at 7). The guidelines also mention, however, that an aisle chair may sometimes be used on the jetway, rather than just at the entrance to the aircraft and within the aircraft, thus implying that some circumstances warrant such use.5 (Id.) Mr. Kantasingh, however, did not cite any circumstances that would warrant transferring a passenger using a motorized wheelchair into the aisle chair at the gate.

Mr. Kantasingh’s stated rationale for having Ms. Gunther remain in her wheelchair until she reached the aircraft conflicts with the rationale supplied by gate agent Joyce in his incident report. In Mr. Joyce’s report, he did not state that he and gate agent Gilbert followed standard procedure by directing Ms. Gunther to use her motorized wheelchair in the jetway. Instead, he stated that Ms. Gunther “could not safely fit into the aisle chair to board the aircraft,” that no wheelchair could accommodate her, and that “the only possible method of boarding [was] for [Ms. Gunther] to be escorted by agent Quentin Gilbert and [agent Joyce] down the jetbridge in her electric wheelchair.” (Joyce Stmt). This account is in conflict not only with Mr. Kantasingh’s impression of what occurred, but also with Joyce’s later acknowledgment that Ms. Gunther was able to use the aisle chair after her fall. (Id.)

The jetway in use at the time of the incident was owned and maintained by the Port Authority. (Kantasingh Dep. at 34, 51-52; Def .’s 56.1 Stmt ¶ 8).6 The jetway consisted of a fixed structure and a moveable extension that, when connected, reached from the gate to the doorway of the aircraft and was about twenty feet long and six feet wide. (Def.’s 56.1 Stmt ¶ 10). The jetway was carpeted up to a metal molding or lip spanning the width of the jetway, where the permanent structure connected to the moveable extension. (Id.) The parties agree that the connecting metal plate was not raised significantly from the surrounding floor of the jetway. (Def.’s 56.1 Stmt ¶ 30; Gunther Dep. at 81). Following the metal lip, some kind of “rubber tile” lined the floor of the jetway. (Kantasingh Dep. at 31).

There is disagreement between the parties as to the degree that the jetway sloped down toward the airplane. At deposition, Mr. Kantasingh estimated that the permanent part of the jetway sloped about fifteen degrees. (Id. at 27). Plaintiff’s expert found this estimate to be “roughly consistent” with “typical jetway models.” (Pl.’s Exp. Rprt at 5). Defendant’s expert, however, stated that the slope of the jetway at the time of the incident was between two and three degrees.7 (Affidavit of Scott Silberman (“Silberman Aff.”), sworn to July 31, 2006, ¶ 4).

Although the parties agree that the metal molding connecting the moveable extension of the jetway to the airport’s permanent fixture was relatively flat-that it did not significantly protrude from the floor of the jetway-the record indicates that the slope of the decline at the point of this molding may have differed from the slope of the jetway more generally. For example, gate agent Joyce’s report notes that Ms. Gunther initially proceeded slowly on the jetway, but she “suddenly accelerated” at the “mini-decline” of the jetbridge, indicating that the jetway was not uniformly sloped throughout its entire length. (Joyce Stmt). The plaintiff’s expert’s report supports this description, stating that where there are differing floor heights between a moveable extension and a permanent fixture, the lip that connects the two pieces, “along with whatever general slope there may be, can be quite steeply pitched” itself. (Pl.’s Exp. Rprt at 5).

Mr. Kantasingh’s testimony also indicates that there may have been a shift in the slope of the jetway at the lip-Mr. Kantasingh stated that the “fixed portion has a decline of about fifteen degrees,” but that after the lip “it’s flat all the way through to the entrance of the aircraft.” (Kantasingh Dep. at 29-30). It is in the vicinity of this lip that Ms. Gunther’s fall occurred. (Def.’s 56.1 Stmt ¶ 27; Gunther Dep. at 77-78, 81-82; Kantasingh Dep. at 48; Joyce Stmt).

The parties also disagree about aspects of the specific procedures implemented by the gate agents present at the time of the incident. AirTran contends that two gate agents walked along the jetway with Ms. Gunther while she operated her own wheelchair. (Def.’s 56.1 Stmt ¶ 37; Kantasingh Dep. at 49, 56-59; Joyce Stmt). Ms. Gunther, however, testified that only one agent was with her on the jetway, following behind and to the right of her chair. (Pl.’s 56.1 Stmt ¶ 37; Gunther Dep. at 74, 77). No one aside from Ms. Gunther touched her chair before her fall. (Def.’s 56.1 Stmt ¶ 36; Kantasingh Dep. at 57).

Whatever her company, Ms. Gunther fell about five or six feet from the door of the aircraft and near the location of the metal molding in the jetway. In the fall, the left side of her body struck the floor of the jetway. (Def.’s 56.1 Stmt ¶ 27; Gunther Dep. at 77-78, 81-82; Kantasingh Dep. at 48; Joyce Stmt).

Accounts of Ms. Gunther’s speed while she traveled down the jetway are also somewhat inconsistent. Mr. Joyce’s incident report stated that Ms. Gunther lost control and accelerated immediately before her fall; plaintiff related that she maintained a controlled slow speed during the entire time she operated her chair down the jetway. (Joyce Stmt; Def.’s 56.1 Stmt ¶ 38; Pl.’s 56.1 Stmt ¶ 38).

Both parties testified that about three people came to assist Ms. Gunther after the fall. (Gunther Dep. at 88; Kantasingh Dep. at 60). The identities of these individuals are not entirely clear, though there seems to have been at least one gate agent and one airplane crew member among them. (Gunther Dep. at 87-88; Kantasingh Dep. at 53-54, 59-60; Joyce Stmt). They helped Ms. Gunther into an aisle chair after her fall and assisted her into her seat on the airplane. (Gunther Dep. at 91). There is another ambiguity in the record, concerning whether Ms. Gunther was indeed the first passenger to board Flight 367, as the gate agent told her she would be. Ms. Gunther stated that “some people” were already on the plane when she boarded, but it is possible that she was referring to the crew. (Gunther Dep. at 92). Mr. Kantasingh stated that Ms. Gunther was the first passenger aboard. (Kantasingh Dep. at 53).

Ms. Gunther’s alleged injuries were not discovered until after her arrival in Atlanta. In the process of disembarking the plane, Ms. Gunther was assisted into an aisle chair at her seat and taken out to her motorized wheelchair in the jetway near the door of the aircraft. (Gunther Dep. at 94). Ms. Gunther used her wheelchair to travel through the jetway to the gate, where she met her daughter, Leanor Gunther, who escorted her from the gate to the parking lot. Leanor Gunther discovered that her mother’s leg was hurt when preparing to help Ms. Gunther into their van. (Id. at 101). Ms. Gunther and her daughter returned to the airport terminal and filled out an incident report. Shortly thereafter, the paramedics arrived and transported Ms. Gunther to the hospital in an ambulance. (Id. at 103-06). Although x-rays at the time did not seem to indicate that Ms. Gunther had broken her leg, a break was detected three days later, after Ms. Gunther’s pain persisted and she returned to the hospital emergency room to be re-examined. (Id. at 109-10).

Ms. Gunther underwent surgery and extensive treatment due to the injuries she allegedly suffered as a result of the December 19 fall. (Id. at 110-20).

IV. Analysis

A. The Standard for Summary Judgment

The court may enter summary judgment only if it concludes that there is no genuine dispute as to the material facts and that, based on the undisputed facts, the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Feingold v. New York, 366 F.3d 138, 148 (2d Cir.2004). “An issue of fact is ‘material’ for these purposes if it ‘might affect the outcome of the suit under the governing law [while] [a]n issue of fact is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” ’ Shade v. Hous. Auth. of the City of New Haven, 251 F.3d 307, 314 (2d Cir.2001) (quoting Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986)). It is axiomatic that the responsibility of the court in deciding a summary judgment motion “is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986); see, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Howley v. Town of Stratford, 217 F.3d 141, 150-51 (2d Cir.2000).

The party moving for summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” that demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); see, e.g., Celotex, 477 U.S. at 322; Koch v. Town of Brattleboro, 287 F .3d 162, 165 (2d Cir.2002). If the non-moving party has the burden of proof on a specific issue, the movant may satisfy its initial burden by demonstrating the absence of evidence in support of an essential element of the non-moving party’s claim. See, e.g., Celotex, 477 U.S. at 322-23, 325; PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir.2002); Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995). If the movant fails to meet its initial burden, however, the motion will fail even if the opponent does not submit any evidentiary materials to establish a genuine factual issue for trial. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 161 (1970); Giannullo v. City of New York, 322 F.3d 139, 140-41 (2d Cir.2003).

If the moving party carries its initial burden, the opposing party must then shoulder the burden of demonstrating a genuine issue of material fact. See, e.g., Beard v. Banks, 126 S.Ct. 2572, 2578 (2006); Celotex, 477 U.S. at 322; Santos v. Murdock, 243 F.3d 681, 683 (2d Cir.2001). In doing so, the opposing party cannot rest on “mere allegations or denials” of the factual assertions of the movant, Fed.R.Civ.P. 56(e); see, e.g., Amaker v. Foley, 274 F.3d 677, 680 (2d Cir.2001), nor can she rely on her pleadings or on merely conclusory factual allegations. See, e.g., Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000). She must also “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also Woodman v. WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir.2005). Rather, she must present specific evidence in support of her contention that there is a genuine dispute as to the material facts. See, e.g., Celotex, 477 U.S. at 324; Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir.1994).

Finally, we briefly note that the granting of summary judgment is rare in negligence actions because such a claim “typically involves an inquiry into the reasonableness of a party’s conduct, a matter that generally implicates a question of fact for a jury.” Katersky v. American Airlines, Inc., 314 F.Supp.2d 275, 277 (S .D.N.Y.2004)(citing King v. Crossland Sav. Bank, 111 F.3d 251, 259 (2d Cir.1997)). See also Stagl v. Delta Airlines, Inc ., 52 F.3d 463, 469 (2d Cir.1995). Of course, the “mere fact that a case involves a claim of negligence does not preclude … summary judgment.” Hong v. Maher, 2004 WL 771127, at *2 (S.D.N.Y. Apr. 13, 2004)(quoting Maizous v. Garaffa, 2002 WL 1471556, at *3 (E.D.N.Y. Apr. 30, 2002)).

B. The Negligence Claim

To sustain a claim of negligence under New York law,8 the plaintiff must “show that the defendant owed the plaintiff a cognizable duty of care, that the defendant breached that duty, and that the plaintiff suffered damages as a proximate result of that breach.” King, 111 F.3d at 259 (citing Stagl, 52 F.3d at 467; Solomon v. City of New York, 66 N.Y.2d 1026, 1027, 499 N.Y.S.2d 392 392-93 (1985)). The defendant argues foremost that AirTran did not owe any duty of care to Ms. Gunther.

1. AirTran’s Duty of Care

The existence and extent of a defendant’s duty to a given plaintiff “is usually a legal, policy-laden declaration reserved for Judges to make prior to submitting anything to fact-finding or jury consideration.” Palka v. Servicemaster Mgmt. Servs. Corp., 83 N.Y.2d 579, 585, 611 N.Y.S.2d 817, 820 (1994). At the same time, New York courts will not condone the modification of well-established duty relationships, see Stagl, 52 F.3d at 469; Alfaro v. Wal-Mart Stores, Inc., 210 F.3d 111, 115-116 (2d Cir.2000), or modify the general rule of ordinary care given the circumstances. Stagl, 52 F.3d at 469. New York courts will, however, conduct “fact-specific duty analyses” where appropriate, id. at 469n.2 (citing and discussing such instances), especially when the circumstances of the case do not fit neatly within a well-established duty relationship. Id.

AirTran argues that because it “did not own, lease, occupy, maintain, or control” the jetway, it owed no duty of care to the plaintiff. In pressing this point, defendant focuses mainly on plaintiff’s failure to state a viable claim for recovery based on premises liability. (Def.’s Mem. at 8). The defendant fails, however, to address the basic and

general rule that [w]henever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to the circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger….

Stagl, 52 F.3d at 469 (quoting Havas v. Victory Paper Stock Co., 49 N.Y.2d 381, 386, 426 N.Y.S.2d 233, 236 (1980)). The question, then, is not one of ownership exclusively, though ownership of the premises would give rise to a well-established duty of ordinary care. Id. at 468-69. The question, rather, is whether the duty to use “ordinary care and skill” arose independently, given other circumstances surrounding the incident.

In New York, common carriers are not bound to a higher duty of care than other tortfeasors and must only exercise “reasonable care under all of the circumstances of the particular case.” Bethel vNew York City Transit Auth., 92 N.Y.2d 348356681 N.Y.S.2d 201205 (1998). This reasonableness standard has long described a common carrier’s duty to its passengers with regard to the “conduct of operational employees,” Bethel, 92 N.Y.2d at 350681 N.Y.S.2d at 201 (citing Stierle v. Union Ry. Co., 156 N.Y. 70, 73 (1898)), and to “stations, platforms or other facilities of ingress or egress.” Id. (citing Lewis v. Metropolitan Transp. Auth., 99 A.D.2d 246, 248, 472 N.Y.S.2d 368, 370 (1st Dep’t 1984), aff’d 64 N.Y.2d 670, 485 N.Y.S.2d 252 (1984)).9

It is also “well settled that a common carrier ‘is under a duty to provide prospective passengers with a reasonably safe, direct entrance onto the vehicle, clear of any dangerous obstruction or defect which would impede that entrance.” ’ Garcia v. Hope Ambulette Service Corp., 307 A.D.2d 860, 860, 763 N.Y.S.2d 605, 606 (1st Dep’t 2003) (quoting Blye v. Manhattan & Bronx Surfaces Tr. Operating Auth., 124 A.D.2d 106, 111, 511 N.Y.S.2d 612, 615 (1st Dep’t 1987), aff’d 72 N.Y.2d 888, 532 N.Y.S.2d 752 (1988)). See also Lim v. Parent, 176 F.Supp.2d 207, 209 (E.D.N.Y.2001) (“Under New York law, which rejects a special rule of care for common carriers, including air carriers, the carrier must exercise reasonable care under all of the circumstances to ensure the safety of its passengers in boarding and alighting from the aircraft or other vehicle.”). For example, in Abraham v. Port Auth. of New York and New Jersey, 29 A.D.3d 345, 347, 815 N.Y.S.2d 38, 40 (1st Dep’t 2006), the court noted that even though a bus company did not own, and had no duty to maintain, the boarding platform, the bus operator nonetheless had a duty to “provide [passengers] with a reasonably safe passage onto the bus [and] should not place the passenger in a position where he or she must follow a dangerous path in order to board….” Id. It is thus clear that AirTran owed a duty to exercise reasonable care to ensure that Ms. Gunther would have the opportunity to safely board its aircraft.10

In assessing the nature and scope of a carrier’s duty regarding entry to its vehicle, New York courts consider the availability of alternative routes of entry. See Blye 124 A.D.2d at 112, 511 N.Y.S.2d at 616 (finding no liability on part of defendant where plaintiff chose her own route to board the common carrier’s bus without direction from the carrier where at least one safe alternative was available); cf. Miller v. Fernan, 73 N.Y.2d 844, 844, 537 N.Y.S.2d 123, 123 (1988) (noting that a factual dispute over whether there was “any safe alternative route” affects the analysis of whether a plaintiff’s conduct can be an intervening and superseding cause of injury as a matter of law). Ms. Gunther clearly did not have an alternative route available when the time came for her to board her flight.

Finally, New York courts “recognize that while the existence of a duty involves scrutiny of the wrongfulness of a defendant’s action or inaction, it correspondingly necessitates an examination of an injured person’s reasonable expectation of the care owed and the basis for the expectation and the legal imposition of duty.” Palka, 83 N.Y.2d at 585, 611 N.Y.S.2d at 820; see Turcotte v. Fell, 68 N.Y.2d 432, 437, 510 N.Y.S.2d 49, 52 (1986)(stating the same). Once a passenger has given her ticket to an airport gate agent and begun to go down the jetway to board an aircraft, the passenger certainly has a reasonable expectation that the gate agents have observed the obvious conditions of both passenger and pathway and, at a minimum, considered whether the path presents a hazard for that passenger.

In this case, Ms. Gunther was instructed by at least one AirTran employee to await direction onto the jetway after her several requests for help, and at least one AirTran employee apparently indicated that it was time to board and escorted Ms. Gunther through the jetway.11 Moreover, the jetway was being used exclusively by AirTran during the boarding, and a trier of fact may infer that the AirTran personnel were familiar with the layout and characteristics of that jetway.12 Furthermore, a trier of fact could find that plaintiff’s reasonable expectation of care by AirTran personnel was not negated by her own behavior in unbuckling her chair’s seatbelt, whatever implications that conduct might have on the element of causation or on any argued theory of comparative negligence.13 AirTran was subject to a duty of reasonable care to ensure that the sole path available to Ms. Gunther would allow her the opportunity to secure safe passage onto the aircraft.

2. Alleged Breach of AirTran’s Duty

As AirTran focuses on the issues of ownership and maintenance of Gate B4, it fails to identify the applicable standard of care and to dispute the alleged breach of its duty. Even though AirTran does not raise issues of fact pertinent to this element of negligence, we nevertheless address the matter briefly in the interest of clarifying the issues for trial. The existence of a duty alone and “the mere happening of an accident [do] not establish liability on the part of a defendant[;] … [rather], plaintiff [is] required to connect her injury to a breach of duty by defendant and to show that defendant’s acts were a substantial cause of the events which produced the injury.” Foley v. Golub Corp., 252 A.D.2d 905, 907, 676 N.Y.S.2d 308, 310 (3rd Dep’t 1998)(internal citations and quotation marks omitted).

As previously discussed, AirTran was at least obligated to exercise “reasonable care under all of the circumstances of the particular case.” Bethel, 92 N.Y.2d at 356681 N.Y.S.2d at 205. In this case, Ms. Gunther alleges, in substance, that AirTran failed to employ a reasonably safe boarding procedure, taking into consideration her status as a passenger using a wheelchair and all other relevant facts and circumstances, and that this failure constituted a breach of the defendant’s ordinary duty of care, which was the proximate cause of her injuries. The evidence put forward by Ms. Gunther highlights several factual disputes that will be material to the trier of fact’s determination of whether the defendant’s conduct was reasonable. It bears repeating that, unlike the analysis of whether a duty exists, “whether a party acted reasonably or breached its duty of care is generally a question of fact for a jury.” Katersky, 314 F.Supp.2d at 278.

The parties present competent, but conflicting, evidence as to the number of employees who escorted Ms. Gunther along the jetway. Ms. Gunther contends that only one employee escorted her. She supports her negligence claim by arguing that the presence of two escorts, at the very least, would have made her passage through the jetway safer. Plaintiff’s expert also opines on this aspect of AirTran’s boarding practices, suggesting that not only should AirTran have used two escorts, but that it was unreasonable for an escort not to hold onto Ms. Gunther’s wheelchair, given the obvious steepness of the jetway and the characteristics of the passenger. (Pl.’s Exp. Rprt at 9). The questions of how many gate agents were on the jetway at the time of the incident and what they should have done to ensure Ms. Gunther’s safety are apparently disputed, and they are plainly material to plaintiff’s claim that AirTran failed to discharge its duty to provide reasonably safe boarding procedures for Ms. Gunther. Cf. Stagl, 52 F.3d at 472 (stating that plaintiff’s expert’s suggestions as to what a carrier could have done differently to assure passenger safety “clearly raise[d] issues of fact as to whether [the carrier] sufficiently discharged its duty of care.”).

The parties also disagree about whether the employees’ behavior conformed with defendant’s own boarding guidelines, as well as with outside recommendations relating to the boarding of passengers with disabilities. Whatever weight should be accorded such guidelines, evidence of AirTran’s customary procedures and the broader industry’s practices in boarding passengers with disabilities is relevant because it may reflect on the reasonableness of defendant’s behavior. See, e.g., Cruz v. New York City Transit Authority, 136 A.D.2d 196, 199, 526 N.Y.S.2d 827, 829 (2d Dep’t 1988) (“Proof of a generally accepted practice, custom or usage within a particular trade or industry is admissible as tending to establish a standard of care, and proof of a departure from that general custom or usage may constitute evidence of negligence.”).14

Still another unresolved issue concerns the airline’s decision not to transfer plaintiff to an aisle chair before she was escorted onto the jetway. Gate agent Joyce’s incident report suggests that AirTran’s procedure did not always require passengers to use their own wheelchairs until reaching the door of the aircraft, while Mr. Kantasingh testified that this was indeed the only approved procedure. It is not at all clear whether transferring Ms. Gunther to an aisle chair at the gate would have avoided the accident, but the gate agent’s apparent vagueness in answering plaintiff’s inquiries allegedly led her to unbuckle herself from the wheelchair, and it seems that no one reminded her to re-buckle when she was escorted onto the jetway, thus arguably making her fall possible. Considering these ambiguities in the light most favorable to Ms. Gunther, a factfinder could reasonably infer that defendant failed to follow an effective procedure for the safe boarding of passengers with disabilities, or, at the very least, that such a procedure was not uniformly known or applied by AirTran employees, and that the confusion contributed to the accident.

Conflicting accounts as to the backdrop of AirTran’s conduct-specifically, the characteristics of the jetway-also illustrate the inappropriateness of summary judgment at this stage. If the slope of the jetway at the time of the incident was clearly slight-less than five degrees, as defendant’s expert opines-the reasonableness of AirTran’s actions will be assessed from a somewhat different perspective than if the slope of the jetway in fact approached fifteen degrees, as plaintiff contends. This issue alone will play a significant role in the determination of whether, for example, it was reasonable for AirTran to exclude plaintiff’s home care attendant, have only one escort on the jetway (if indeed it did), make the aisle-chair transfer at the door of the aircraft instead of at the gate, refrain from physical guidance of the wheelchair as it proceeded down the jetway, and fail to caution plaintiff to proceed slowly and re-buckle her belt.15

These many factual disputes preclude the determination that, as a matter of law, AirTran acted reasonably and satisfied its duty to the plaintiff.

3. Causation

Finally, the defendant argues that Ms. Gunther’s actions alone, rather than any act or omission on the part of AirTran’s employees, caused her injuries. Given our preceding analysis, it is evident that issues of fact exist that are central to the identification of the cause of Ms. Gunther’s fall, and causation, like breach, is an element of negligence “generally and more suitably entrusted to fact finder adjudication.” Palka, 83 N.Y.2d at 585.

The parties disagree about Ms. Gunther’s speed and the control that she exerted over her wheelchair at the time of the incident. Gate agent Joyce stated that Ms. Gunther accelerated immediately before her fall. Defendant argues that it was this accelerated speed, in combination with Ms. Gunther’s unbuckling of her seatbelt, that caused her fall on the jetway.

Ms. Gunther, however, testified that she maintained a slow speed while she was traveling in her chair down the jetway. She alleges that various aspects of defendant’s conduct were the causes of her fall.16 These include the dismissal of her home care attendant, the use of only one escort on the jetway, the failure to warn plaintiff of the slope of the jetway, the failure to help her control the wheelchair, and the failure to transfer her to an aisle chair at the gate while giving her ambiguous answers as to whether she would be provided with one, thus inducing her to unbuckle the chair’s seatbelt.

In sum, if the disputed facts are viewed in the light most favorable to Ms. Gunther, a fair inference can be made that defendant’s actions and inactions were a proximate cause of plaintiff’s injuries. It follows that summary judgment is inappropriate on the question of causation.

In assessing these arguments, we also note that the details of defendant’s employees’ guidance and assurances to Ms. Gunther at the time that they directed her to commence boarding may impact a factfinder’s determination of the cause of Ms. Gunther’s fall and the resulting injuries, especially if such conduct engendered reliance or a false sense of security in the plaintiff. See Heard v. City of New York, 82 N.Y.2d 66, 72n*, 603 N.Y.S.2d 414, 417-18n* (1993) (“[C]ases involving reliance … may be analyzed as raising either an issue of proximate cause or scope of duty.”); see also Garcia, 307 A.D.2d at 860, 763 N.Y.S.2d at 606 (stating that the duty New York imposes on carriers to provide a reasonably safe route of entry “may be breached if the carrier did anything to ‘compel or even suggest’ that the passenger take a defective or dangerous path of ingress or egress”) (quoting Blye, 124 A.D.2d at 114, 511 N.Y.S.2d at 612). From the ambiguity in the record as to what the gate agents told plaintiff, a reasonable factfinder could infer that Ms. Gunther’s fall was at least in part caused by her proceeding in the confidence created by the gate agents’ directions, presumably based on their superior knowledge of the layout of the jetway.

V. Conclusion

Defendant’s motion for summary judgment is denied for the reasons discussed above. The court will conduct a conference with counsel on February 15, 2007 at 10:00 AM in Courtroom 17D.



1 Mr. Kantasingh testified as AirTran’s representative at its Rule 30(b)(6) deposition. He was the airline’s Customer Service Supervisor at the time of the incident. (Kantasingh Dep. at 46).
2 Even though it is not made explicit in the record, it is reasonable to infer that a gate agent informed the home care attendant that she would be unable to accompany Ms. Gunther on the jetway. Ms. Gunther testified that the home care attendant left “[w]hen she found out she couldn’t go [any] further.” At that time, Ms. Gunther was engaged in dialogue with an AirTran gate agent. (Gunther Dep. at 72).
3 This gate agent may have been Mr. Frederick Joyce, Jr., or Mr. Quentin Gilbert, both of whom were working at gate B4 during the boarding of Flight 367 on December 19, 2002. (Kantasingh Dep. at 47-49). Neither are currently employed by AirTran. (Id. at 61-62). Mr. Joyce was the gate agent who called Mr. Kantasingh to report the incident immediately after it occurred (Id. at 47), and later prepared an accident report himself. (Id. at 70-72; see Statement of Frederick Joyce, Jr. (“Joyce Stmt”), attached to Def.’s 56.1 Stmt as Ex. 4). Ms. Gunther stated that she does not remember the name of the gate agent with whom she primarily interacted around the time of the incident. (Gunther Dep. at 68, 70-73).
4 Defendant insists that it does not have a written record of its policy and/or safety manuals that were in effect at the time of the incident. (See Aff. of Jo Ann McGary, AirTran Manager of Legal Affairs, sworn to May 30, 2006, attached as Ex. D to the Affirmation of William A. Okun, dated Aug. 16, 2006, ¶¶ 4-6). The record consists solely of Mr. Kantasingh’s 2006 deposition testimony’s descriptions of the procedure in place at the time of the incident.
5 For instance, the guidelines state: “A steep skybridge floor inclination requires extra strength to control the wheelchair or boarding chair (in the case that the boarding chair is used from the terminal gate point).” (Pl.’s Exp. Rprt at 7 (quoting the ATBCB’s guidelines)).
6 The description given by Mr. Kantasingh was in response to a question about the jetway used at Gate B8. (Kantasingh Dep. at 26). AirTran maintains that jetways B8 and B4 are similar and that Mr. Kantasingh’s description applies to both. (Id. at 51-52; Def.’s 56.1 Stmt ¶ 10).
7 Mr. Silberman based this statement on the measurement of the jetway’s slope in July 2006-more than three and one half years after the incident-after “confirm[ing] that the surface and configuration of the jetway [had] not been altered since December 2002.” (Silberman Aff. ¶ 4). The source of this confirmation is not cited in Mr. Silberman’s report.
8 The parties implicitly recognize that New York law governs this diversity action since both rely on New York precedent in their papers. See Lawton v. Alitalia-Linee Aeree Italiane-Societa, 1999 WL 632846, at *3n.2 (S.D.N.Y. Aug. 18, 1999)(citing American Fuel Corporation v. Utah Energy Development Co., 122 F.3d 130, 134 (2d Cir.1997)).
9 In Bethel, the New York Court of Appeals eliminated the higher duty of care that had previously been imposed on common carriers regarding “possible defects ‘in the road-bed, or machinery or in the construction of the cars, or … appliances such as would be likely to occasion great danger and loss of life.” ’ Bethel, 92 N.Y.2d at 350681 N.Y.S.2d at 201 (quoting Kelley v. Manhattan Ry. Co., 112 N.Y. 443, 450 (1889)).
10 The plaintiff seems to rely primarily on an assumed-duty theory of negligence. (See Pl.’s Mem. at 5). Because material issues of fact exist as to whether the defendant fulfilled its obligation to exercise ordinary care that arises from any common carrier’s relationship with its passengers, it is unnecessary here to decide whether other theories put forward by plaintiff may also serve as viable bases for recovery.
11 Though not explicitly addressed by the parties, presumably such an escort is not provided for passengers who do not have physical disabilities.
12 At the time of the incident, the defendant was conducting a “dual operation,” necessitating AirTran’s use of Gate B4 instead of its designated gate. (Def.’s Mem. at 2; Kantasingh Dep. at 17-18). Defendant does not, however, suggest that this fact impacted its employees’ familiarity with the jetway at Gate B4. Instead, the defendant argues only that the jetway was not defective, implying familiarity with its condition. (Def.’s Mem. at 10). Furthermore, Mr. Kantasingh’s testimony about the similarity of the jetways at Gates B8 and B4 also implies that AirTran was familiar with the jetway at Gate B4.
13 Indeed, the record does not preclude a trier of fact from considering whether the AirTran gate agents realized that Ms. Gunther had unbuckled herself and whether, aware of that fact, they should have advised her to re-attach the belt.
14 It is not necessary to discuss the weight, if any, internal or external guidelines may add to the parties’ claims or defenses. It is appropriate to note, however, that “internal rules and manuals, to the extent they impose a higher standard of care than is imposed by law, are inadmissible to establish a failure to exercise reasonable care.” Abraham, 29 A.D.3d at 347, 815 N.Y.S.2d at 40-41.
15 The parties do not dispute that the home care attendant was dismissed upon Ms. Gunther’s arrival at the gate or that the aisle chair transfer was made only after Ms. Gunther’s fall in the jetway. The disputed slope of the jetway, however, will impact the reasonableness of both of these AirTran decisions, reflecting on whether its behavior was negligent. Reasonableness queries would undoubtedly include considering AirTran’s dismissal of the attendant when a second or third escort may have been more appropriate given the slope of the jetway and Ms. Gunther’s characteristics. This scenario is suggested by plaintiff’s expert. (Pl.’s Exp. Rprt at 9).
Further, transfer to the aisle chair at the gate rather than at the door of the aircraft, or anywhere in between, would have presumably required an escort to physically control and direct the wheelchair and would have led to Ms. Gunther being buckled into the chair. Plaintiff’s expert’s statement that a fifteen-degree slope of the jetway floor “would have caused the wheelchair to tilt forward enough to dump users like Ms. Gunther out” (Pl.’s Exp. Rprt at 6) suggests that the same result would not have occurred had Ms. Gunther been in a chair controlled and directed by an escort instead of in her motorized chair.

16 We note that even if Ms. Gunther’s wheelchair accelerated before her fall, a trier of fact could find that a failure by AirTran personnel to warn her of the slope of the jetway was a contributing factor in her losing control of her wheelchair.