Drews v. Am. Airlines, Inc.

• Decision Date: 18 December 2014
• Docket Number: Case No. 13–10421.
• Citation: 68 F.Supp.3d 734
• Parties: Robert G. DREWS, Plaintiff, v. AMERICAN AIRLINES, INC., Defendant.
• Court: U.S. District Court — Eastern District of Michigan

68 F.Supp.3d 734

Robert G. DREWS, Plaintiff

v.AMERICAN AIRLINES, INC., Defendant.

Case No. 13–10421.

United States District Court, E.D. Michigan, Southern Division.

Signed Dec. 18, 2014.

Fred S. Findling, Findling Law Firm, Royal Oak, MI, for Plaintiff.

ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DKT. 27) AND DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S FIRST AMENDED WITNESS LIST (DKT. 33)

TERRENCE G. BERG, District Judge.

This case involves a slip and fall on an airline jetway. Plaintiff Robert G. Drews filed suit against Defendant American Airlines, Inc. on February 1, 2013 alleging that Defendant was negligent in failing to warn Plaintiff as he was boarding a flight at Chicago O'Hare Airport in Chicago, Illinois that the jet bridge was slippery with deicing solution spilled by Defendant's employees. (Dkt. 1, p. 2.) Plaintiff claims that he sustained severe injuries as a direct and proximate result of Defendant's negligence when Plaintiff slipped and fell on the jet bridge. (Id. ) Defendant has moved for summary judgment on Plaintiff's claim. (Dkt. 27.) The motion was fully briefed and oral argument was heard on July 16, 2014.

Defendant has also moved to strike Plaintiff's July 20, 2014 First Amended Witness List (Dkt. 33) in its entirety because Plaintiff added two witnesses, Drs. Robert Carson and Steven Anderson, after the close of discovery. (Id. at 7, 11.) As a result, Defendant has not had an opportunity to depose the new witnesses or conduct other discovery. Plaintiff offers the explanation that he added these new witnesses because Plaintiff's treating physician suffered a debilitating stroke

, leaving him unable to be deposed or to testify at trial. (Dkt. 33, p. 3.) Without a treating physician to testify regarding Plaintiff's wrist injury and treatment, Plaintiff would be significantly prejudiced.

After careful review and consideration of the pleadings, supporting briefs and oral arguments, the Court finds that there are disputed issues of material fact regarding Plaintiff's premises liability claim. With respect to Defendant's motion to strike Plaintiff's entire amended witness list, the Court will deny the motion but extend the discovery period for 45 days from the date of this Order as to Drs. Carson and Anderson only for the limited purpose of taking their depositions and requesting any relevant medical records. Therefore, Defendant's Motion for Summary Judgment (Dkt. 27) and its Motion to Strike Plaintiff's Late First Amended Witness List (Dkt. 32) will both be DENIED.

I. FACTUAL BACKGROUND

As a preliminary matter, the Court notes that Plaintiff did not follow the type size requirement specified in local rule 5.1(a)(3) (no type size smaller than 14 point) or the Court's practice guidelines for a response to a motion for summary judgment that are available on the Court's website. These practice guidelines provide as follows:

A Rule 56 motion must begin with a “Statement of Material Facts.” Such a Statement is to be included as the first section of the Rule 56 Motion. The Statement must consist of separately numbered paragraphs briefly describing the material facts underlying the motion, sufficient to support judgment. Proffered facts must be supported with citations to the pleadings, interrogatories, admissions, depositions, affidavits, or documentary exhibits. Citations should contain page and line references, as appropriate.... The Statement of Material Facts counts against the page limit for the brief. No separate narrative facts section shall be permitted.

The response to a Rule 56 Motion must begin with a “Counter-statement of Material Facts” stating which facts are admitted and which are contested. The paragraph numbering must correspond to moving party's Statement of Material Facts. If any of the moving party's proffered facts are contested, the non-moving party must explain the basis for the factual disagreement, referencing and citing record evidence. Any proffered fact in the movant's Statement of Material Facts that is not specifically contested will, for the purpose of the motion, be deemed admitted. In similar form, the counter-statement may also include additional facts, disputed or undisputed, that require a denial of the motion.¹

Plaintiff's response included a separate narrative fact section in violation of the Court's practice guidelines. While Defendants' “Statement of Facts” was organized in separately numbered paragraphs, Plaintiff's response omitted the “Counter-statement.” Without a statement and counter-statement, the parties fail to identify clearly which material facts are subject to dispute.² The Court nonetheless conducted a thorough review of parties' briefs, oral arguments, and exhibits and gleaned the following facts, which are viewed in a light most favorable to Plaintiff as the non-moving party.

A. Defendant's Motion for Summary Judgment

On January 27, 2012, Plaintiff Robert G. Drews and his wife Roberta Drews were returning from Hawaii to Michigan on an American Airlines flight with a connection in Chicago. (Dkt. 27, Ex. 1, pp. 45–49.) Both passengers and some airline employees indicated that, on the jetway leading to the aircraft of the connecting flight from Chicago O'Hare International Airport in Chicago, Illinois, to Bishop International Airport in Flint, Michigan, there was some kind of a clear liquid present on the floor during the boarding process. (Dkt. 27, Ex. 11, pp. 32:3–33:14, 39–41; Dkt. 27, Ex. 22.)

The captain of that flight, Michael Melchoir, testified that the liquid on the jetway floor was deicer fluid, and was located in the area near the entrance of the aircraft, between the service door and the jetway extender. (Id. at pp. 31:12–33:14.) Captain Melchoir thought that the deicer fluid had been tracked onto the jetway, but he did not know by whom. (Id. at pp. 33:22–34:11.) Captain Melchior noted in his incident report that the “plastic ramp where the jet bridge retracts into itself [was] slick due to deice fluid tracked from the ramp.” (Dkt. 27, Ex. 22.)

During the boarding process, Captain Melchoir walked up the jetway to use the restroom in the terminal and then back down the jetway to the airplane. (Id. ) Prior to boarding, First Officer Yann Wuchterl completed a pre-flight check of the exterior of the aircraft that required him to walk from inside the plane out onto the jetway and then through the service door. (Dkt. 27, Ex. 20, p. 78:5–25.) After approximately ten minutes, First Officer Wuchterl returned to the plane's flight deck through the service door and the jetway as passengers were boarding. (Id. at 27:12–28:24.) Neither had difficulty walking on the jetway (Dkt. 27, Ex. 11, p. 68:415; Dkt. 27, Ex. 20, pp. 78:20–79:1), but Captain Melchoir noticed fluid by the service door upon his return to the plane (Dkt. 27, Ex. 11, pp. 67:12–68:12). A passenger informed Captain Melchoir as he returned to the plane that “people were slipping and falling in the jet bridge” (Dkt. 27, Ex. 22).

A passenger also told flight attendant Donna Valdez, who was standing just inside the aircraft entrance while passengers were boarding, that passengers were falling in the jetway. (Dkt. 27, Ex. 19, pp. 14:7–15:5, 20:19–21.) Although Valdez could see the short segment of the jetway that met the door of the airplane, she herself did not see anyone fall in that area. (Id. at 16:4–12, 20:19–21, 29:1–30:4.) According to Valdez, approximately 12 to 15 people had boarded when she first learned that passengers were slipping. (Id. at 20:12–16.) Valdez then shared that information with Captain Melchoir. (Id. at pp. 14–15.) In addition, First Officer Wuchterl was making “repeated calls” from the flight deck to “[Operations] of the slippery situation.” (Dkt. 27, Ex. 22; Ex. 21, 41:4–43:16.) While Captain Melchoir was notifying a baggage handler of the problem, yet another passenger slipped. (Id. ) As a result, Captain Melchoir advised the gate agent to discontinue boarding until the jetway was cleaned. (Id. )

Seven passengers total “made mention of slipping” including Plaintiff. (Id. ) At some point while boarding, Plaintiff slipped in an area he described as “about midway in the jetway.” (Dkt. 28, Ex. V at 76:16–23.) Plaintiff's wife was somewhere behind him on the jetway and he could see the door of the airplane. (Id. at 57:2259:21.) During his deposition, Plaintiff testified that he fell “instantaneously” on one of the connector ramps of the jetway floor where the surface is sloped and uneven. (Id. at 77:8–79:12.) According to Passenger Service Supervisor Calvin Lewis, this floor segment is a section of the jetway that expands and retracts. (Dkt. 27, Ex. 16, pp. 74–76.) Plaintiff only recalls “putting [his] left foot forward, it slipping out from underneath [him], and [he] was down.” (Dkt. 28, Ex. V at 79:23–24.)

After Plaintiff's slip, Plaintiff's wife and an unidentified passenger helped him up. (Dkt. 28, Ex. V at 82:6–25.) According to Plaintiff's wife, that unidentified passenger told them that the jetway floor was very slippery, and other passengers had fallen. (Dkt. 27, Ex. 21 at 10:8–12:5.) Plaintiff “complained of a sore knee and forearm” but initially refused medical attention. (Dkt. 27, Ex. 22.) Plaintiff testified that once he and his wife arrived in Flint, a member of the flight crew approached Plaintiff and said “Sir, I'm sorry, this should have never happened. One of the ground crew tracked deicer up into the jetway.” (Dkt. 28, Ex. V at 88:16–24.) As a result of this slip, Plaintiff claims he permanently injured his right wrist and right hip. (Dkt. 1, ¶¶ 11–12.)

B. Defendant's Motion to Strike Plaintiff's Amended Witness List

On February 24, 2012, Dr. Jeffrey Gorosh, assisted by Dr. Robert Carson treated a torn ligament

in Plaintiff's right wrist by removing tissue from the scapholunate ligament and synovial joint, and administering a corticosteroid injection. (Dkt. 34, Ex. C.) Dr. Steven Anderson assisted Dr. Gorosh on March 30, 2012, with the performance of a SLAC...