McKenzie-Wharton v. United Airlines, Inc.
| Decision Date | 22 September 2016 |
| Docket Number | CASE NO. 8:15-cv-114-17MAP |
| Court | U.S. District Court — Middle District of Florida |
| Parties | LOU BERTHA MCKENZIE-WHARTON, and RICHARD G. WHARTON, Plaintiffs, v. UNITED AIRLINES, INC., Defendant. |
This matter comes before the Court pursuant to Defendant United Airlines, Inc.'s motion for summary judgment (Dkts. 44, 45, 58), to which Plaintiffs respond in opposition (Dkts. 52, 53). Three months after filing the motion for summary judgment, United filed a second motion for summary judgment (Dkt. 68), in violation of this Court's Case Management and Scheduling Order. Plaintiffs move to strike the second motion (Dkt. 69), and also respond in opposition (Dkts. 70, 71). Upon consideration, United's motions are DENIED.
While boarding a flight to Tampa, a United flight attendant allegedly dropped a piece of luggage on Plaintiff Lou Bertha McKenize-Wharton ("Plaintiff"). Plaintiff and her husband, Richard G. Wharton, sue United for negligence and loss of consortium, based on a theory of vicarious liability.
The flight attendant, Karen Jackson, is not a party to this action, and the parties do not currently dispute her negligence. Instead, United argues that Jackson was acting outside the scope of her employment because she was traveling as a passenger. Under the unique facts of this case, the Court agrees with Plaintiffs that a jury question exists as to whether Jackson was acting within the scope of her employment. The relevant facts follow.
Jackson works for United as an international flight attendant, based in Newark, New Jersey. (Dkt. 52 at ¶ 3). Approximately three times a month, Jackson flies from Newark to Mumbai, India and back to Newark. (Id. at ¶ 5). Although Jackson is based in Newark, she lives in Tampa, Florida. (Dkt. 45-1, "Jackson Dep." at 3, 27, 34). After finishing her assigned route, Jackson usually flies from Newark back to Tampa, if she can find a flight with an available seat. (Id. at 34).
On the day of the incident, June 12, 2014, Jackson arrived in Newark on a flight from Mumbai. (Dkt. 52 at ¶¶ 7-8). The first available flight from Newark to Tampa was United Flight 1553. (Id. at ¶¶ 14-15). Jackson was assigned to a jump seat, as a "Pass Rider Space Available" ("PRSA") passenger. (Id. at ¶ 13). As a PRSA passenger, Jackson did not pay for a ticket, which was one of the benefits of her employment. (Jackson Dep. at 31).
Plaintiff was also traveling on Flight 1553. (Dkt. 52 at ¶ 21). When Jackson boarded the aircraft, Plaintiff was already seated in the last row, in an aisle seat. (Jackson Dep. at 10-11; Dkt. 53-1, "Pl. Aff." at ¶¶ 3-4). Jackson's jump seat was directly behind Plaintiff, next to the lavatories and galley. (Dkt. 53-5, "Garcia Dep." at 11). When Jackson reached Plaintiff's row, she stopped to introduce herself to the crew and to stow her luggage. (Jackson Dep. at 11). Plaintiff alleges that Jackson then dropped a piece ofluggage on her ankle, resulting in ligament and nerve damage.1 (Pl. Aff. at ¶ 4).
The lead flight attendant for Flight 1553, Nicholas Garcia, received a call from the back of the plane alerting him "that something had happened to a passenger regarding a piece of luggage." (Garcia Dep. at 7, 9, 15). Although Garcia testified that Jackson did not make the call, the other flight attendants on board denied making the call or did not remember making the call. (Dkt. 53-7 at 6-7; Dkt. 53-9 at 8; Dkt. 53-8 at 6, 12). In light of this evidence, and because the phone required special dialing codes, Plaintiffs assert that Jackson made the call. (Dkt. 53-3 at ¶ 7.6; Dkt. 53-9 at 8-9; Garcia Dep. at 15; Dkt. 52 at ¶ 48).
According to Plaintiff, Jackson was wearing a flight attendant's uniform on Flight 1553, and "during the flight she assisted the flight crew as I would expect a working flight attendant to do." (Pl. Aff. at ¶ 5). Jackson testified that she did not specifically recall performing tasks on Flight 1553, but "I'm sure I did." (Jackson Dep. at 29). When flying as a PRSA passenger, Jackson "always offer[s] [her] services." (Id. at 12). In particular, she will "make drinks," "collect rubbish," "sell[] cold food on board," "direct people in and out of the lavatories," and provide "any assistance that is needed." (Id. at 12, 29). Jackson voluntarily provides these services as "a courtesy to the in-flight staff" and to "make sure that our customers get the best of service." (Id. at 17-18, 27, 29-30).
Jackson was not paid wages to work on Flight 1553. (Id. at 26-27). In fact, United maintains that federal regulations prohibited Jackson from working on Flight 1553, becauseshe had previously worked over 16 hours on the flight from Mumbai, without taking a rest break. (Dkt. 52 at ¶¶ 9, 20; Jackson Dep. at 30); see 14 C.F.R. § 121.467(b)(7).
According to Jackson, she was not reprimanded for anything that happened on Flight 1553. (Jackson Dep. at 13, 30). Plaintiffs' expert, Linda Fow, opines that United was aware that jump-seat passengers were working while off-the-clock. (Dkt. 53-3 at ¶ 9.4).
On October 3, 2014, Plaintiffs filed this action in state court. (Dkt. 2). Invoking this Court's diversity jurisdiction, United removed the case on January 20, 2015. (Dkt. 1). Plaintiff brings a single claim for negligence against United based on vicarious liability, and her husband seeks damages for loss of consortium. (Dkt. 2).
On May 23, 2016, United filed its first motion for summary judgment, arguing that Jackson was acting outside the scope of her employment. (Dkt. 45). On August 15, 2016, United filed a second motion for summary judgment—in violation of this Court's Case Management and Scheduling Order—in which United contends that Plaintiffs' failure to disclose a medical expert necessarily means that she is unable to establish the causation prong of her negligence claim. (Dkt. 68). The Court addresses the motions in turn.
Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment "bears the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its burden by "negating an element of thenon-moving party's claim," or by "point[ing] to materials on file that demonstrate that the party bearing the burden of proof at trial will not be able to meet that burden." Id.
"If the party moving for summary judgment fails to discharge the initial burden, then the motion must be denied and the court need not consider what, if any, showing the non-movant has made." Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993). If the moving party succeeds in discharging the initial burden, the burden shifts to the non-moving party to demonstrate that there is a genuine issue of material fact that precludes summary judgment. Clark, 929 F.2d at 608. A factual dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In assessing the sufficiency of the evidence, the court "must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party." Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997).
Choice of law
This action presents a threshold choice-of-law issue, which is resolved under the choice-of-law principles of Florida, the forum state. Boardman Petroleum, Inc. v. Federated Mut. Ins. Co., 135 F.3d 750, 752 (11th Cir. 1998). In actions for personal injury, Florida courts apply the "significant relationship" test, which presumes that the law of the place of injury governs, unless another state has a more significant relationship to the dispute. Alvarez v. U.S. Immigration & Customs Enf't, 818 F.3d 1194, 1229 (11th Cir. 2016); State Farm Mut. Auto. Ins. Co. v. Olsen, 406 So. 2d 1109, 1110-11 (Fla. 1981). Inmaking this determination, Florida courts consider: (1) "the place where the injury occurred," (2) "the place where the conduct causing injury occurred," (3) "the domicil[e], residence, nationality, place of incorporation and place of business of the parties," and (4) "the place where the relationship, if any, between the parties is centered." Id. Florida courts then take these "factual contacts" into account in assessing several general choice-of-law considerations:
(a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the de termination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.
Mezroub v. Capella, 702 So. 2d 562, 565 (Fla. 2d DCA 1997); Grupo Televisa, S.A. v. Telemundo Commc'ns Grp., Inc., 485 F.3d 1233, 1242-43 (11th Cir. 2007).
It is undisputed that Plaintiff's injury occurred in Newark, New Jersey, while Flight 1553 was boarding. (Dkt. 52 at 2, ¶ 10; Jackson Dep. at 11). The presumption is therefore that New Jersey law applies. Mezroub, 702 So. 2d at 565. Indeed, United previously requested that Plaintiffs admit that New Jersey law governs. (Dkt. 63-1 at ¶¶ 19-20). Nonetheless, the parties apply Florida law, without any discussion of the relevant factors. (E.g., Dkt. 45 at 15-16 n.3).
A review of the record indicates that Florida possesses at least some relationship to this action: Plaintiffs allege that they are domiciled in Florida, Jackson lives in Florida, and the flight on which the...
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