Filed: Dec. 07, 2005
Latest Update: Feb. 21, 2020
Summary: Massachusetts state court.Santarpio, as a defendant in his amended complaint.also a dispensable party that the court can dismiss.6, Gorfinkle also argues that the open and obvious doctrine does, not absolve U.S. Airways negligence for maintaining the luggage, area in a hazardous condition.
United States Court of Appeals
For the First Circuit
No. 04-1837
CLIFFORD GORFINKLE,
Plaintiff, Appellant,
and
DEBORAH A. GARSTON; PPA ALEXANDRA REBECCA JEAN GARSTON,
Plaintiffs,
v.
U.S. AIRWAYS, INC.; F.F. SANTARPIO,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O’Toole, Jr., U.S. District Judge]
Before
Lipez and Howard, Circuit Judges, and
Restani, Judge.*
Frank J. Riccio for appellant.
Richard P. Campbell with whom Kathleen M. Guilfoyle and
Campbell Campbell Edwards & Conroy, PC. were on brief for appellee
U.S. Airways, Inc.
William J. Flanagan with whom Morrison Mahoney LLP were on
brief for appellee F.F. Santarpio.
December 7,2005
*
Honorable Jane A. Restani, Chief Judge of the United States
Court of International Trade, sitting by designation.
RESTANI, Judge. Clifford Gorfinkle (“Gorfinkle”) brought
a negligence claim against U.S. Airways, Inc. (“U.S. Airways”) in
Massachusetts state court. U.S. Airways then removed the case to
federal court based upon diversity of citizenship, and brought a
third-party claim against F.F. Santarpio (“Santarpio”). Gorfinkle
subsequently filed a Second Amended Complaint adding Santarpio, a
nondiverse party, as a direct defendant, and thus destroyed
diversity. The case proceeded to the merits without the parties or
the district court recognizing the diversity issue and the court
granted summary judgment in favor of Gorfinkle.
We dismiss the complaint against Santarpio with prejudice
in order to preserve diversity jurisdiction, and otherwise affirm
the district court’s grant of summary judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Gorfinkle claims that he was injured on March 9, 1996,
because U.S. Airways created a hazardous condition in its baggage
claim area, and then failed to warn him of, and protect him from,
the hazardous condition. The hazardous condition consisted of
stacked luggage in a baggage claim area at Logan International
Airport in Boston, Massachusetts.
The night before Gorfinkle’s accident, U.S. Airways
canceled his flight from Philadelphia, Pennsylvania, to Boston,
Massachusetts. His luggage was sent ahead to Logan International
Airport and Gorfinkle followed on an overnight train. Upon
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arriving, Gorfinkle went to the airport to pick up his luggage.
Once at the airport, he went into a roped-off baggage claim area
where luggage had been stacked about two to three bags high. He
climbed on top of the stacked luggage and walked on top of the
stacks to find his suitcase. Gorfinkle then attempted to pull out
a suitcase from underneath two other bags, but let go when he
realized it was not his. He then lost his balance, fell, and
injured himself.
Afterwards, Gorfinkle brought a negligence claim against
U.S. Airways in Suffolk Superior Court. On May 27, 1999, U.S.
Airways removed the action to federal court based upon diversity of
citizenship – Gorfinkle is a domiciliary of Massachusetts, while
U.S. Airways is a Delaware corporation with its principal place of
business in Virginia. U.S. Airways then filed a third-party
complaint against Santarpio, the skycap for the baggage claim area
and a Massachusetts corporation with its principal place of
business in Massachusetts. While this did not defeat diversity,
Gorfinkle destroyed diversity when he filed a Second Amended
Complaint adding Santarpio as a direct defendant.1
The district court did not realize that diversity was
defeated and granted summary judgment in favor of the defendants.
1
The Second Amended Complaint included claims brought by
Gorfinkle’s daughter, Alexandra Rebecca Jean Garston, and wife,
Deborah A. Garston. Alexandra’s claim was dismissed on August 8,
2003, and Deborah’s claim was dismissed on January 30, 2004.
Neither are party to this appeal.
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Gorfinkle appealed the grant of summary judgment. Upon oral
argument, the court discovered that complete diversity had been
defeated. In his supplemental brief, Gorfinkle asks the court to
remand the case to state court, while appellees request the
dismissal of Santarpio to preserve diversity jurisdiction.
II. DIVERSITY JURISDICTION
In order to maintain an action in federal court based
upon diversity jurisdiction, the plaintiff must be diverse from the
defendant in the case. See Am. Fiber & Finishing, Inc. v. Tyco
Healthcare Group, LP, 362 F.3d 136, 139 (1st Cir. 2004) (citing
Strawbridge v. Curtiss,
7 U.S. 267 (1806)). The addition of a non-
diverse defendant in an amended complaint defeats diversity. See
id. at 141–42.
If the nondiverse party is dispensable, however, an
appellate court can preserve diversity jurisdiction by dismissing
the non-diverse party from the action. See Newman-Green, Inc. v.
Alfonzo-Larrain, 490 U.S. 826, 837 (1989). In taking this step, an
appellate court “should carefully consider whether the dismissal of
a nondiverse party will prejudice any of the parties in the
litigation.”
Id. at 838.
In the instant case, Gorfinkle added a nondiverse party,
Santarpio, as a defendant in his amended complaint. Even though
Santarpio’s presence defeated diversity, the case proceeded to a
decision on the merits. We conclude that we can preserve diversity
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jurisdiction by dismissing Santarpio because he is a dispensable
party and his dismissal will not prejudice any of the remaining
parties.
First, we can dismiss Santarpio because he is a potential
joint tortfeasor, and thus a dispensable party. See id. at 838 (in
regards to a party that was “jointly and severally liable, it
cannot be argued that [the party] was indispensable to the suit”);
Temple v. Synthes Corp, Ltd.,
498 U.S. 5, 7 (1990); Casas Office
Machs., Inc. v. Mita Copystar Am., Inc.,
42 F.3d 668, 677 (1st Cir.
1994); Austin v. Unarco Indus., Inc.,
705 F.2d 1, 5 (1st Cir.
1983). Under Massachusetts tort law, parties are jointly and
severally liable “if [they] negligently contribute to the personal
injury of another by their several acts, which operate
concurrently, so that in effect the damages suffered are rendered
inseparable.” O’Connor v. Raymark Indus.,
518 N.E.2d 510, 513
(Mass. 1988) (citing to Chase v. Roy,
294 N.E.2d 336 (Mass. 1973)).
Here, Santarpio is a potential joint tortfeasor because Gorfinkle’s
injuries stemmed from one fall, which he attributes to the
negligence of both U.S. Airways and Santarpio.2 Thus, Santarpio is
also a dispensable party that the court can dismiss.
Second, Santarpio’s dismissal will not prejudice any of
2
Gorfinkle’s complaint alleges that U.S. Airways and Santarpio
negligently allowed a hazardous condition to exist, Compl. at 2, ¶
6, negligently failed to warn about the hazardous condition, Compl.
at 2, ¶ 7, and negligently failed to protect Gorfinkle from the
hazardous condition, Compl. at 2, ¶ 8.
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the remaining parties. In examining prejudice, the Supreme Court
cautioned that “[i]t may be that the presence of the nondiverse
party produced a tactical advantage for one party or another.”
Newman-Green, 490 U.S. at 838. The Court found no tactical
advantage when “[d]iscovery directed to [the nondiverse defendant]
while he was a party would have been available even if he had not
been a party.” Id.; see also Sweeney v. Westvaco Co.,
926 F.2d 29,
41 (1st Cir. 1991) (plaintiff could have called the same witness
and introduced the same evidence even in the nondiverse defendant’s
absence); Casas Office
Machs., 42 F.3d at 677 (plaintiff could have
obtained the same business and financial records even if the
nondiverse defendant was absent in the case). Likewise, in this
case, even in Santarpio’s absence, Gorfinkle would have been able
to conduct the same discovery – call Santarpio as a witness, take
depositions, and request documents. Thus, Santarpio’s presence did
not provide Gorfinkle with any tactical advantage.
Finally, the only party here who would be prejudiced by
Santarpio’s dismissal is Santarpio himself. Santarpio had
participated in the litigation from the beginning, the case had
reached a judgment on the merits, and Santarpio may have to
relitigate the suit in state court if he is dismissed. We resolve
this problem by dismissing Santarpio with prejudice.3 See Newman-
3
We are mindful that in a similar case, Casas Office Machines,
we remanded the issue of whether to dismiss with or without
prejudice to the district court. Casas Office Machines was before
us on interlocutory appeal and we emphasized that unlike in Newman-
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Green, 490 U.S. at 837–38 (nondiverse defendant was dismissed with
prejudice because he had participated in the litigation from the
start, the case had reached a judgment on the merits, and he would
be faced with the possibility of a new suit if he were dismissed
without prejudice).
Therefore, we are able to preserve diversity jurisdiction
and can review the merits of Gorfinkle’s appeal.
III. OPEN AND OBVIOUS DANGER
The district court granted summary judgment in favor of
U.S. Airways, finding that U.S. Airways owed no duty to Gorfinkle
because walking on top of stacked luggage was an open and obvious
danger. Summary judgment is appropriate if “there is no genuine
issue as to any material fact and . . . the moving party is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
The evidence is viewed in the light most favorable to the nonmoving
party. Nicolo v. Philip Morris Inc., 201 F.3d 29, 33 (1st Cir.
2000).
Upon careful review of this case, we hold that the
Green, the defendants did not have their claims adjudicated by the
district court and the parties had not had a chance to argue the
issue. 42 F.3d at 677–78. Here, the parties fully litigated their
claims.
Additionally, a joint tortfeasor defendant dismissed with
prejudice to preserve diversity jurisdiction may still be liable to
the remaining defendant for indemnity or contribution. See Newman-
Green, 490 U.S. at 838. Here, because we affirm the district
court’s judgment in U.S. Airways’ favor, the issue is irrelevant.
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district court properly granted summary judgment in favor of U.S.
Airways. The undisputed material facts show the existence of an
open and obvious danger that negated U.S. Airway’s duty of care to
Gorfinkle.
“Before liability for negligence can be imposed, there
must first be a legal duty owed by the defendant to the plaintiff.”
Davis v. Westwood Group, 652 N.E.2d 567, 569 (Mass. 1995). Whether
or not a duty of care existed is a question of law for the court.
O’Sullivan v. Shaw,
726 N.E.2d 951, 954 (Mass. 2000); Yakubowicz v.
Paramount Pictures Corp.,
536 N.E.2d 1067, 1070 (Mass. 1989).
Under Massachusetts law, a property owner does not owe a
duty to a visitor to warn him of, or protect him from, dangers that
are “obvious to persons of average intelligence.”4 O’Sullivan, 726
N.E.2d at 954. The open and obvious doctrine asks “whether the
dangerous condition was . . . so obvious that the defendant would
be reasonable in concluding that an ordinarily intelligent
4
Gorfinkle relies on Michalski v. Home Depot, Inc., a Second
Circuit case applying New York law, to argue that even if a danger
were open and obvious, defendants would be liable to plaintiffs as
long as the plaintiffs’ injuries were foreseeable. 225 F.3d 113,
119 (2d Cir. 2000). This is not the law in Massachusetts. In
Massachusetts, an open and obvious danger “operates to negate the
existence of a duty of care.”
O’Sullivan, 726 N.E.2d at 956.
Wilson v. Copen, 244 F.3d 178, 181–82 (1st Cir. 2001), also
does not contradict the holding of O’Sullivan. In fact, Wilson
noted that an open and obvious danger does relieve a homeowner of
a duty to warn, and that summary judgment can be granted when no
reasonable jury could conclude otherwise.
Id. at 182 n.1.
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plaintiff would perceive it and avoid it.” Id. at 955 (emphasis
added).
Here, Gorfinkle was injured while he was searching for
his luggage in a roped-off baggage claim area. The bags in the
area had been stacked two to three high. Rather than requesting
assistance or removing them one by one to look for his suitcase,
Gorfinkle climbed on top of the stacked luggage and walked on top
of it. He then fell off the stacked luggage and injured himself.
Under the law of Massachusetts, the danger of walking
across stacked luggage is open and obvious.5 See Tetreault v.
Dupuis, 222 N.E.2d 876 (Mass. 1967) (no duty owed to plaintiff who
walked over debris that was swept into a pile); Boike v. Brinker
Mass. Corp.,
19 Mass. L. Rptr. 40 (Mass. Super. Ct. 2005) (no duty
to warn plaintiff about the dangers of walking on a wet, soapy and
greasy staircase); Moise v. Holyoke Hosp., Inc., 2002 Mass. App.
Div. 14 (Mass. Dist. Ct. 2002) (no duty owed to plaintiff who
climbed over a 3 to 3 1/2 foot snowbank). Here, it would have been
apparent to an ordinarily intelligent plaintiff that he might fall
if he attempted to walk over stacked luggage. Gorfinkle
5
Gorfinkle argues that Costa v. Boston Red Sox Baseball Club,
809 N.E.2d 1090, 1093 (Mass. App. Ct. 2004), states that the open
and obvious doctrine only applies to negligent failure to warn.
Costa does not stand for this proposition but instead, was a case
in which the alleged negligence was limited to the defendant’s
failure to warn. Moreover, as indicated in O’Sullivan, the Supreme
Judicial Court of Massachusetts does not limit the application of
the doctrine to failure to warn
cases. 726 N.E.2d at 954.
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acknowledges that he was aware he needed to be careful while
walking on top of the luggage. Therefore, we conclude, as did the
district court, that walking on top of stacked luggage was an open
and obvious danger.6
Accordingly, Gorfinkle has failed to establish that U.S.
Airways had a duty to warn or otherwise protect him from the open
and obvious danger. For the foregoing reasons, we affirm the
district court’s grant of summary judgment in favor of U.S.
Airways.
6
Gorfinkle also argues that the open and obvious doctrine does
not absolve U.S. Airway’s negligence for maintaining the luggage
area in a hazardous condition. Gorfinkle cites Martins v. Healy,
in which the court held that a deck was unreasonably dangerous
because it had no pool lights illuminating the deck and because
there was no railing or fence around the deck to prevent the
plaintiff from falling off the deck. 15 Mass. L. Rptr. 42 (Mass.
Super. Ct. 2002). The current case is different, however, because
the condition of the luggage itself, stacked together in an obvious
manner in a lighted baggage claim area, is not unreasonably
dangerous.
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