DAVID L. BUNNING, District Judge.
Arising from Plaintiff Valarie Kopp tripping while on a Delta flight that departed from the Cincinnati Airport on April 20, 2017, (Doc. # 1-2 at 3-7), this matter is before the Court on Defendant Delta Airlines, Inc.'s Motion for Summary Judgment (Doc. # 17). The Motion has been fully briefed and is now ripe for the Court's review. (Docs. # 18 and 19). For the reasons set forth herein, the Motion is
On April 20, 2017, Plaintiff Valarie Kopp was flying from the Cincinnati Airport ("CVG") to Los Angeles, California ("LAX") on a Delta Airlines, Inc. ("Delta") flight. (Doc. # 1-2 at 4). During the flight, Kopp got out of her seat to stretch in the aisle. Id.; see also (Doc. # 17-5 at 11-12). At the same time, Kopp alleges that a flight attendant
Kopp claims that "[i]n order to avoid colliding" with the flight attendant she "stepped into a row of seats, and in doing so, twisted her knee, causing serious injury and requiring serious surgical intervention to repair the damage." (Doc. # 1-2 at 4). Specifically, Kopp explained that her "left foot touched the floor brace of the seat in front of [her], causing [her] knee to twist outward and [she] fell into the seat." Id. at 17; see also (Doc. # 17-5 at 11) ("I went to step into our row of seats and my foot caught on the frame of the seat in front of me and I fell, but my foot and my knee stayed on the opposite side of the frame."). Kopp alleges that because the flight attendant "rushed down the airplane [aisleway]," Kopp "rush[ed to get] out of the way" and had to "jump into a row of seats . . . for fear of being run over." (Doc. # 1-2 at 5-6). At no time, however, did the flight attendant make physical contact with Valarie Kopp.
Kopp brought claims of negligence against both Delta and the flight attendant. (Doc. # 1-2 at 5-6). She alleges in the Complaint that Delta is vicariously liable for the negligence of the flight attendant because the flight attendant was acting within her scope of employment "when she negligently ran down the [aisleway] and caused Plaintiff to injure her knee." Id. at 5. Kopp requests compensatory and special damages, prejudgment interest, costs, fees, and any other relief the Court finds to be equitable. Id. at 7.
Kopp originally filed her action in Boone County Circuit Court. (Docs. # 1 at 1 and 1-2 at 3). After removal to federal court, Delta moved for summary judgment. (Doc. # 17). The Motion has been fully briefed, (Docs. # 18 and 19), and is now ripe for the Court's review.
Summary judgment may be granted if the moving party "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). Material facts are those that "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Once the moving party has met the initial burden of showing the absence of a genuine dispute of material fact, the non-moving party must then `come forward with specific facts showing that there is a genuine issue for trial.'" Baker v. City of Trenton, 936 F.3d 523, 529 (6th Cir. 2019) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient," Anderson, 477 U.S. at 252, and the plaintiff must "do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. 475 U.S. at 587. It is up to the Court to determine, while viewing the evidence in the light most favorable to the non-moving party and drawing inferences in that party's favor, id. (citing Smith Wholesale Co. v. R.J. Reynolds Tobacco Co., 477 F.3d 854, 861 (6th Cir. 2007)), "whether reasonable jurors could find by a preponderance of the evidence that the [non-moving party] is entitled to a verdict," id. (alteration in original) (quoting Anderson, 477 U.S. at 248).
In considering whether there are genuine issues of material fact, a court may consider "materials in the records including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials." FED. R. CIV. P. 56(c). Parties may not rely, however, on "the mere pleadings themselves." Thomas v. City of Alliance, 52 F.3d 326, at *2 (6th Cir.1995) (unpublished table decision) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).
In support of its Motion for Summary Judgment, Delta argues that it and its flight attendant were not negligent as a matter of law.
To make out a claim for negligence in Kentucky,
Whether the defendant owes a duty to the plaintiff is a legal issue reserved to the Court, Patton, 529 S.W.3d at 792, because "[w]hen a court resolves a question of duty it is essentially making a policy determination," Ostendorf v. Clark Equip. Co., 122 S.W.3d 530, 533 (Ky. 2003) (quoting Mullins v. Commonwealth Life Ins. Co., 839 S.W.2d 245, 248 (Ky. 1992)). "If no duty is owed by the defendant to the plaintiff, there can be no breach thereof and therefore no actionable negligence." Ashcraft v. People's Liberty Bank & Tr. Co., 724 S.W.2d 228, 229 (Ky. Ct. App. 1986).
In Kentucky there is a universal duty; "every person owes a duty to every other person to exercise ordinary care in his activities to prevent foreseeable injury." Kendall v. Godbey, 537 S.W.3d 326, 331 (Ky. App. 2017) (quoting Lee v. Farmer's Rural Elec. Co-Op Corp., 245 S.W.3d 209, 212 (Ky. App. 2007)). Some people and entities, however, owe higher duties.
However, a common carrier
The limit of a common carrier's liability under Kentucky law is best illustrated by the Fisher case. In that case, an adult passenger on a bus "received a broken arm when his elbow, which he had extended out an open window of the bus, struck a utility pole as the bus pulled away from the curb after . . . discharg[ing] passengers." Fisher, 303 S.W.2d at 272. The Kentucky Court of Appeals
Here, it is undisputed that Delta, as a common carrier, and its employees owed Plaintiff Kopp, as a passenger, "the highest degree of care" in transporting her. Kendall, 537 S.W.3d at 332. Delta is not, however, liable for any injury Kopp might have received during the flight. Id. at 333; see also Fisher, 303 S.W.3d at 273. The duty is limited to that which may have been foreseeable in the normal course of operations. Kendall, 537 S.W.3d at 332; Wise, 207 S.W.2d at 765. Delta's duty does not extend to preventing passengers from tripping over themselves. Specifically, Delta flight attendants do not have a duty to diligently monitor every able-bodied passenger on the plane to ensure passengers do not trip getting in and out of their seats; such a duty would be a "well-nigh impossible task" on top of the other duties flight attendants carry out to during a flight, including critical tasks which ensure the safety of the passengers. Fisher, 303 S.W.3d at 273; see also (Doc. # 17-3 at 6:5-21, 9:7-21) (flight attendant Christine Padin describing the training and duties of a Delta flight attendant).
While it is logically foreseeable that there is a risk that a passenger could trip while moving out of the aisle, whether to allow a flight attendant or someone else to pass, the Court finds that it is not unreasonable for a flight attendant to create that risk by walking down a plane's aisle. An alternative finding would be absurd given the many duties— including safety and security responsibilities which may be critical and time sensitive— that flight attendants undertake. In fact, extending a common carrier's duty to cover this scenario would make Delta an "insurer of [passenger] safety," which is a standard beyond "the highest degree of care for [ ] passengers"; it is clear that Kentucky law does not intend the duty of common carries to extend this far. Kendall, 537 S.W.3d at 332 (quoting Fisher 303 S.W.2d at 273). As Delta and the flight attendant did not have a duty to prevent the injury Plaintiff suffered, summary judgment is appropriate on the negligence claim brought against Delta. See Ashcraft, 724 S.W.2d at 229.
Even if a Kentucky court were to find that the common carrier duty covered this scenario, no reasonable jury could find that the flight attendant in this case breached her duty of care. "Whether a standard of care is met, generally, is a fact intensive inquiry and is `grounded in common sense and conduct acceptable to the particular community.'" Veloudis v. Wal-Mart Stores East, Ltd. P'ship, No. 2016-CA-000207-MR, 2017 WL 3499927, at *6 (Ky. App. July 28, 2017) (quoting Shelton, 413 S.W.3d at 913-14). Accordingly, a jury ordinarily determines whether a defendant has breached a duty of care. Patton, 529 S.W.3d at 729. This is not the case, however, when, viewing the evidence in the light most favorable to the non-moving party, "reasonable minds cannot differ or it would be unreasonable for a jury to find breach." Veloudis, 2017 WL 3499927, at *6 (quoting Shelton, 413 S.W.3d at 916); see also A.A. By & Through Lewis v. Shutts, 516 S.W.3d 343, 350 (Ky. App. 2017) (quoting Shelton, 413 S.W.3d at 916). In such a case, summary judgment may still be granted.
Here, there is no dispute of fact as to the events that led to Kopp's injury.
This a commonsense case; no reasonable jury could find that the flight attendant in this case breached her duty of care by walking—even walking quickly—up the aisle of the airplane during a flight. In fact, moving throughout the cabin to ensure safety and provide services to passengers is precisely the role of a flight attendant. See (Doc. # 17-3 at 6:5-21, 9:7-21) (deposition of Christine Padin). At times, flight attendants may even need to walk quickly in order to carry out essential tasks. There is no evidence in this case that the flight attendant was traversing the plane in a way that was unreasonable or unexpected of a flight attendant. Additionally, there is no evidence that the flight attendant would not have stopped to allow Kopp to get into her seat. Perhaps if the flight attendant had made physical contact with Kopp or was pushing a heavy cart down the aisle without warning passengers to move their elbows out of the way, the situation would be different. That is not the case here, however. The flight attendant's actions did not breach her duty of care to the passengers on the plane.
In fact, Plaintiff has not even put forth an argument as to how the flight attendant's actions were a breach of her duty or pointed to any specific facts which would allow a jury to find in her favor. Rather, Kopp just makes the conclusory assertion that "by running up the aisle," a mischaracterization of the events, (Doc. # 17-5 at 11), "[the flight attendant] was careless and caused the whole thing." (Doc. # 18 at 6). She later repeats the same conclusory assertion that "the flight attendant was clearly negligent when she ran down the aisleway of the plane." Id. Aside from continuing to allege that the flight attendant was running, after previously admitting that she was merely walking quickly, (Doc. # 17-5 at 11), Kopp has failed to explain how walking quickly breaches a flight attendant's duty of care towards passengers. See generally (Doc. # 18). It would be unreasonable for a jury to find the flight attendant breached her duty of care. Accordingly, the issue of breach is not appropriate for a jury, Veloudis, 2017 WL 3499927, at *6, and summary judgment must be granted in favor of Delta.
Unfortunately for Plaintiff, saying someone acted negligently simply does not make it so. As Delta did not have a duty to prevent this type of injury, and even if it did the flight attendant did not breach that duty, the flight attendant was not negligent as a matter of law. Thus, Delta cannot be found liable for negligence under a theory of vicarious liability, Williams, 113 S.W.3d at 151, and summary judgment must be granted in Delta's favor.
Additionally, this Court has the ability to grant summary judgment sua sponte. Shelby Cty. Health Care Corp. v. S. Council of Indus. Workers Health & Welfare Tr. Fund, 203 F.3d 926, 931 (6th Cir. 2000). "[A] district court may enter summary judgment sua sponte in certain limited circumstances, `so long as the losing party was on notice that [it] had to come forward with all of [its] evidence,'" id. (quoting Salepour v. Univ. of Tenn., 159 F.3d 199, 203 (6th Cir. 1998)), and had a "reasonable opportunity to respond to all the issues to be considered by the court," id. (quoting Employers Ins. of Wausau v. Petroleum Specialties, Inc., 69 F.3d 98, 105 (6th Cir. 1995)). See also FED. R. CIV. P. 56(f). Here, the Motion for Summary Judgment by Delta raised the same issue that would have been raised had a similar motion been filed by the flight attendant—whether there was any issue of material fact that would preclude finding that the flight attendant was not negligent as a matter of law. Thus, Kopp had an opportunity to respond to the issues that would have been raised had the unnamed flight attendant also moved for summary judgment. Accordingly, the Court will sua sponte grant summary judgment in favor of the unnamed flight attendant for the reasons articulated above.
For the reasons set forth herein,
(1) Delta's Motion for Summary Judgment (Doc. # 17) is
(2) Summary Judgment in favor of Jane Doe, Unknown Flight Attendant is
(3) This action is
(4) A corresponding
Underlying this choice-of-law approach for torts is the fact "that `Kentucky's tort . . . laws are intended to protect Kentucky residents and provide compensation when they are the injured party.'" Hoagland v. Ford Motor Co., No. Civ.A. 06-615-C, 2007 WL 2789768, at *4 (W.D. Ky. Sept. 21, 2007) (quoting Custom Prods., Inc. v. Fluor Daniel Can., Inc., 262 F.Supp.2d 767, 773. (W.D. Ky. 2003)). Here, the injured party is from Kentucky, the flight originated in Kentucky, and the subsequent medical treatment was in Kentucky. (Doc. # 1-2 at 3-4, 13-14). The Court finds these contacts to be significant, so Kentucky law applies. See Warndorf v. Otis Elevator Co., No. 2:17-cv-159-DLB-CJS, 2019 WL 137585, at *2 ("The tort claims alleged here were committed against [a] Kentucky resident[], which gives the claims `significant contacts' with Kentucky." (quoting Aces High Coal Sales, Inc. v. Cmty. Tr. & Bank of W. Ga., No. 2:15-cv-161-DLB-HAI, 2017 WL 3122661, at *12 (E.D. Ky. July 21, 2017)).
Admissions by a nonmoving party during a deposition can eliminate any dispute about a material fact. See Anderson v. Cash, 70 F. App'x 251, 253 (6th Cir. 2003) (Plaintiff admitted during his deposition "that he posed an immediate threat to the safety of the officer or others, and that he was actively resisting arrest or attempting to evade arrest by flight . . . [so] there exists no genuine issue of material fact with regard to [Plaintiff's] excessive force claim and the district court properly granted summary judgment in favor of [Defendant]."); see also Williams v. Owensboro Bd. of Educ., No. 4:07-cv-149, 2009 WL 3210649, at *2 (W.D. Ky. Sept. 30, 2009) (finding no genuine issue of material fact that "Plaintiff's position could be combined with other positions, and could therefore be eliminated" after Plaintiff admitted during her deposition that "she is aware of [her] position being combined with additional positions or duties at other schools in Kentucky."). The Court does the same here and finds that Kopp's admission that the flight attendant was merely "walking fast" and not "running," (Doc. # 17-5 at 11), eliminates any dispute as to how quickly the flight attendant was traveling, so there is no genuine issue of material fact that would preclude the entry of summary judgment, FED. R. CIV. P. 56(a).