Opinion
00 Civ. 2743 (LMM).
April 12, 2004
MEMORANDUM AND ORDER
Plaintiff brings this action against Continental Airlines, Inc., alleging that Defendant's negligence was the proximate cause of her injuries when a crutch fell out of an overhead bin and struck her on her back and neck. Plaintiff initiated this action in the Supreme Court of the State of New York, and Defendant removed to federal court. Plaintiff seeks monetary damages.
Defendant has filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, Defendant's motion is denied.
Background
On November 29, 1998, Patricia Shupert was a passenger on a Continental flight scheduled to fly from Fort Lauderdale, Florida, to Newark, New Jersey. (Def. 56.1 Stmt. ¶ 1.) Although she was assigned to seat 10B, the middle seat in a section of three, she ultimately sat in the window seat to accommodate Sandy Mathieson, who was seated in the aisle seat of the same row. (Def. 56.1 Stmt. ¶ 2; Shupert Dep. at 39.) Due to a knee replacement surgery, Mathieson used aluminum "Canadian crutches" — crutches with cups at the top for the arms, and handles for the hands — to help her walk. (Def. 56.1 Stmt. ¶ 4; Mathieson Dep. at 12, 42.) A flight attendant assisted Mathieson to her seat and then stowed her crutches in the back of the overhead compartment above Row 10. (Mathieson Dep. at 54.) Although the flight was scheduled to go to Newark, the plane was forced to land in Orlando, Florida, because of mechanical difficulties. (Mathieson Dep. at 19.) The short flight was apparently a turbulent one (Shupert Dep. at 51; but see Mathieson Dep. at 19), and, as was later revealed, the crutches and the other luggage in the compartment shifted during the flight (Mathieson Dep. at 54). Once on the ground in Orlando, Mathieson requested that a fellow passenger — a tall male — retrieve her crutches from the overhead bin. (Mathieson Dep. at 37-38.) This passenger successfully passed the first crutch, which had shifted to the front of the bin, to Mathieson without incident. The second crutch, however, had apparently wound up in a more difficult position behind other luggage, and when he attempted to retrieve it, it slipped from his hand and hit Shupert on her neck and back. (Mathieson Dep. at 41-42). At the time, Shupert was attempting to retrieve her own carry-on luggage from beneath seat 10B. (Shupert Dep. at 56-57.) Shupert suffered injuries as a result of the blow, and filed the current action.
Standard of Review
Under Rule 56, an action will be dismissed on summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Silver v. City Univ. of New York, 947 F.2d 1021, 1022 (2d Cir. 1991). The court must view all evidence in the light most favorable to the nonmoving party. Eastman Kodak Co. v. Image Technical Servs., 504 U.S. 451, 456 (1992) (citingAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
Once a moving party presents appropriate support showing that there is no genuine issue of material fact, the nonmoving party must present similar support setting forth specific facts about which a genuine issue remains. Fed.R.Civ.P. 56(e); see Anderson, 477 U.S. at 256. The party with the burden of proof at trial must "make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Mere conclusory allegations will not suffice. Fed.R.Civ.P. 56(e). "When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994).
Discussion
A. Federal Preemption
This case presents a question of federalism: should federal or state law govern the standard of care owed by an airline to its passengers in the field of airline safety? Continental argues that federal law should govern, while Shupert counters that state law should decide the issue.
The Supremacy Clause of the United States Constitution states that "the Laws of the United States . . . shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI. The power of Congress to preempt state law derives from this clause.
Preemption can be either explicit — that is, directly written into a statute — or implicit — "contained in [the] structure and purpose" of the statute. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992) (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977)). Within the realm of implied preemption, a state law will be held invalid if it directly conflicts with federal law (conflict preemption), or if the federal scheme is "`so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it'" (field preemption). Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98 (1992) (quoting Fid. Fed. Sav. Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153 (1982)) (other citations omitted). Continental urges the Court to find that field preemption prevents the use of a state standard of care.
This case centers around the Federal Aviation Act of 1958, Pub.L. No. 85-726, 72 Stat. 731 (codified as amended at 49 U.S.C. § 40101 et seq.) (West 1997 Supp. 2003) (FAA). The primary purpose of the FAA was to create the Federal Aviation Administration, which promulgates regulations that govern the aviation industry. Curtin v. Port Authority of New York and New Jersey, 183 F. Supp.2d 664, 668 (S.D.N.Y. 2002). The FAA did not contain an express preemption clause. It did, however, contain both a sovereignty clause and a saving clause. The sovereignty clause stated that "[t]he United States of America is hereby declared to possess and exercise complete and exclusive national sovereignty in the airspace of the United States . . .," FAA § 1108(a), 72 Stat. 731, 798, while the saving clause stated, "[n]othing contained in this Act shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this Act are in addition to such remedies." FAA § 1106, 72 Stat. 731, 798; see also Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378 (1992) (quoting then-current 49 U.S.C. App. § 1506).
The legislative history of the FAA indicates that one of its purposes is to "rest sole responsibility for supervising the aviation industry with the federal government." Abdullah v. American Airlines, Inc., 181 F.3d 363, 368 (3d Cir. 1999) (citing S. Rep. No. 1811, 85th Cong., 2d Sess., 5 (1958)). As part of its structure, the FAA has numerous provisions related to safety. For example, the FAA states that "[t]he Administrator of the Federal Aviation Administration shall promote safe flight of civil aircraft," 49 U.S.C. § 44701(a), and that "[t]he Administrator shall carry out this chapter in a way that best tends to reduce or eliminate the possibility or recurrence of accidents in air transportation," id. § 44701(c).
In addition to the statute itself, federal control of aviation is exercised through a series of regulations promulgated under the Act and codified in Title 14 of the Code of Federal Regulations. See id. § 40113. The Act authorizes the Administrator to "prescribe minimum safety standards." Id. § 44701(b). In prescribing these standards the Administrator has, among other regulations, promulgated a general standard of care: "No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another." 14 C.F.R. § 91.13 (2004).
In 1978, Congress amended the FAA with the Airline Deregulation Act, Pub.L. No. 95-504, 92 Stat. 1705 (codified as amended in scattered sections of 49 U.S.C.) (ADA). Unlike the FAA, the ADA contained an express preemption provision "[t]o ensure that the States would not undo federal deregulation with regulation of their own." Morales, 504 U.S. at 378. Specifically, this provision prohibits states from enacting or enforcing "a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier. . . ." 49 U.S.C. § 41713(b)(1). The ADA left the saving clause of the original FAA untouched.
Congress has subsequently modified both the sovereignty and saving clauses without substantive change. The former now reads, "[t]he United States Government has exclusive sovereignty of airspace of the United States," 49 U.S.C. § 40103(a)(1), and the latter, "[a] remedy under this part is in addition to any other remedies provided by law," 49 U.S.C. § 40120(c). See Pub.L. No. 103-272 § l(e), 108 Stat. 745, 1101 (sovereignty clause), 1118 (saving clause) (1994).
The Supreme Court has addressed the express preemption provision of the ADA twice since its passage: in Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992) (cited above), and inAmerican Airlines, Inc. v. Wolens, 513 U.S. 219 (1995). Morales dealt with airline fare advertising practices, and concluded that a state's general consumer protection laws were sufficiently related to the "services" of an airline to be preempted by federal law. 504 U.S. at 384. Wolens, similarly, held that a state claim for consumer fraud based on the devaluation of frequent flier miles was preempted as being related to an airline service. 513 U.S. at 228. Although the Second Circuit has not ruled on the breadth of the ADA express preemption clause, a number of other courts have held that personal injury negligence cases and other state tort cases are outside its scope, and are therefore not preempted. See, e.g., Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir. 1995) (en banc) (ADA did not preempt negligence claim when plaintiff was hit by a case of rum that fell out of the overhead compartment); Pittman v. Grayson, 869 F. Supp. 1065, 1074 (S.D.N.Y. 1994) (ADA did not preempt state claims against airline for intentional interference with a custodial relationship, intentional infliction of emotional distress, and false imprisonment); Margolis v. United Airlines, Inc., 811 F. Supp. 318, 322 (E.D. Mich. 1993) (preemption provision of ADA was not intended to preclude common law negligence actions).
While holding that the claim based on the Illinois Consumer Fraud And Deceptive Business Practices Act was preempted, the Court held that the related contract claim, because it was based on obligations the airline had undertaken on its own, rather than those imposed by the state, was not preempted. Wolens, 513 U.S. at 228-29.
Continental's argument, however, focuses on the implied preemptive scope of the 1958 FAA, contending that the original FAA preempts state law in the field of airline safety. (Def. Mem. at 8.) Continental argues that, inasmuch as Shupert relies upon cases that examine the express preemption clause of the ADA, such focus is misplaced, and that the preemptive effect of the FAA is independent from that of the express provisions of the ADA. (Def. R. Mem. at 6-7.)
As a secondary argument, Continental also argues that its employees' behavior during deplaning does relate to a service, and should therefore fall within the express preemption of the ADA. (Def. R. Mem. at 8.) See Northwest Airlines, Inc. v. Duncan, 531 U.S. 1058 (2000) (noting disagreement among certain circuits as to whether "services" includes boarding procedures) (O'Connor, J., dissenting from denial of certiorari). Because the Court holds that the 1958 FAA preempts state law in the current situation, it expresses no opinion as to the express preemption provision of the ADA as applied to the current facts.
Although neither the Supreme Court nor the Second Circuit has dealt squarely with this issue, other courts have discussed the preemptive effect of the original FAA. Continental relies heavily upon Abdullah v. American Airlines, Inc., 181 F.3d 363 (3d Cir. 1999), in which the Third Circuit undertook a detailed examination of the history and case law surrounding the FAA. 181 F.3d at 368-71. In Abdullah, passengers who were injured when the flight encountered turbulence sued the airline alleging negligence on the part of the pilot and flight crew. Id. at 365. The Third Circuit held that the FAA and the relevant regulations promulgated thereunder established the standard of care for air safety, preempting the entire field from state regulation. Id. at 365, 367. After a thorough examination of the legislative history and purpose of the FAA, the court answered a number of other rationales that may have supported a contrary conclusion. Among them, the court dismissed the idea that the express preemption provision of the ADA prevents a finding of implied preemption in the original FAA. Id. at 372-73. Not only would such interpretation lead to a result contrary to the congressional intent behind the original FAA, the court held, but the lack of temporal proximity also made the approach less appropriate. Id. at 373 ("`[T]he maxim [expressio unius est exlusio alterius ("to express one is to exclude the other")] . . . is pretty weak when applied to acts of Congress enacted at widely separated times.'" (quoting Moreno Rios v. United States, 256 F.2d 68, 71 (1st Cir. 1958))). Countering the argument that state tort laws could work in concert with and as a supplement to the federal rules,Abdullah held that the Act and the regulations had entirely filled the area of airline safety, and there was nothing left for states to regulate. Id. at 374. "If Congress has preempted a field — whether it be expressly or by implication — state laws attempting to regulate within that field `will be invalidated no matter how well they comport with substantive federal policies.'"Id. (quoting L. Tribe, American Constitutional Law § 6-27 at 497 (2d ed. 1988)). Despite its finding of preemption of the state standard of care, however,Abdullah held that the FAA could coexist with state damage remedies without undoing the federal regulatory scheme. Therefore, plaintiffs could potentially recover under state and territorial remedial schemes. Id. at 375-76.
In French v. Pan Am Express, 869 F.2d 1 (1st Cir. 1989), the First Circuit also found implied preemption under the FAA, and held that it preempted Rhode Island's law regarding employee drug testing as it applied to pilots. Id. at 7. Implied in the FAA, the court stated, was "an unmistakably clear intent to occupy the field of pilot regulation related to air safety, to the exclusion of state law." Id. at 6. To support this holding, the court cited the "pervasiveness of relevant federal regulation, the dominance of the federal interest, and the legislative goal of establishing a single, uniform system of control over air safety." Id. at 6-7. Specifically, it pointed to legislative history evincing Congress's desire to create a "single uniform system of regulation, especially with regard to air safety." Id. at 5 (citing H.R. Rep. No. 2360, 85th Cong., 2d Sess., 22, reprinted in 1958 U.S.C.C.A.N. 3741, 3741).
There has been conflicting appellate authority in this circuit.In re Air Crash Disaster at John F. Kennedy Int'l Airport, 635 F.2d 67 (2d Cir. 1980), for instance, involved a crash during inclement weather at JFK airport in New York. 365 F.2d at 69. There, the Second Circuit affirmed the use of New York law in determining the liability of Eastern Airlines. Id. at 74-75, cited in Abdullah, 181 F.3d at 368 (noting contrary authority). The court pointed out, however, that both parties had stipulated to the use of New York law, and stated that the FAA did not preclude common law remedies, citing the saving clause for that proposition. In re Air Crash Disaster, 635 F.2d at 74. The court did not discuss preemption further. Notably, although state law was deemed controlling, the appellate court also affirmed the district judge's charge to the jury to consider federal safety standards, comprised of a number of regulations that may have applied to the facts. Id. at 75-76 n. 5. Similarly, Stagl v. Delta Airlines, Inc., 52 F.3d 463 (2d Cir. 1995), also involved personal injury claims against an airline. There, an elderly passenger was injured by a fellow passenger during a crowded rush at the baggage claim carousel. 52 F.3d at 466. The court analyzed Delta's duty of care under New York law, but did so noting that neither party questioned the ruling of the district court regarding federal preemption. Id. at 467; Stagl v. Delta Airlines, Inc., 849 F. Supp. 179, 182-83 (E.D.N.Y. 1994) (holding that express preemption provision of ADA does not preempt state common law claims for personal injuries). Again, the court engaged in no further preemption analysis.
District court opinions in this Circuit have diverged. Trinidad v. American Airlines, Inc., 932 F. Supp. 521 (S.D.N.Y. 1996), arose from the same turbulence-plagued flight as Abdullah.Trinidad conducted a detailed analysis of the express provision of the ADA, holding that it did not preempt state law, 932 F. Supp. at 524-26, and, contrary to Abdullah, rejected as well the argument that the 1958 FAA preempted state common law negligence claims, id. at 527. The focus of the case was the ADA, however, and the analysis of the FAA preemption was more abbreviated. Id. Sakellaridis v. Polar Air Cargo, Inc., 104 F. Supp.2d 160 (E.D.N.Y. 2000) (Weinstein, J.), dealt with the work-related injuries of a plaintiff who was employed as an airline mechanic. 104 F. Supp.2d at 161-62. The opinion distinguished Abdullah on its facts, but stated that even if it were not distinguishable, the Second Circuit's decision in In re Air Crash Disaster, supra, mandated the holding that state law was not preempted.Sakellaridis, 104 F. Supp.2d at 163. Curtin v. Port Authority of New York and New Jersey, 183 F. Supp.2d 664 (S.D.N.Y. 2002), on the other hand, considered the same Second Circuit precedent and came to the opposite conclusion. There, the plaintiff sued Delta Airlines after suffering injuries during an emergency evacuation. 183 F. Supp.2d at 666. The court denied a request to remand, holding that the FAA impliedly preempted airline evacuation procedures. Id. at 671-72. It stated that because of its lack of preemption analysis, In re Air Crash Disaster was not binding on the issue. Id. at 669-70.Curtin also examined relevant caselaw and addressed the saving clause of the FAA, holding that it did not require non-preemption. Curtin, 183 F. Supp.2d at 669. "[T]he saving clause foresees — it does not foreclose — the possibility that a federal safety standard will pre-empt a state common-law tort action with which it conflicts." Geier v. Am. Honda Motor Co., 529 U.S. 861, 870 (2000), quoted in Curtin, 183 F. Supp.2d at 669. Accordingly, it agreed with the First and Third Circuits, holding that "[t]he comprehensive federal regulatory scheme covering emergency evacuation procedures, the manifest purpose of the FAA to ensure safety, and the legislative history all favor finding that the standard of care is a matter of federal, not state, law." Curtin, 183 F. Supp.2d at 671 (citing French, 869 F.2d at 1; Abdullah, 181 F.3d at 365); see also Schaeffer v. Cavallero, 29 F. Supp.2d 184, 186 (S.D.N.Y. 1998) (denying remand, holding that federal standard in FAA provision was an essential element of state claim regarding passenger removal, and therefore required resolution of substantial question of federal law).
The Court agrees with the analysis in Abdullah, French, andCurtin. "`Where . . . Congress has entrusted an agency with the task of promulgating regulations to carry out the purposes of a statute, as part of the pre-emption analysis we must consider whether the regulations evidence a desire to occupy a field completely.'" French, 869 F.2d at 4 (quoting R.J. Reynolds Tobacco Co. v. Durham County, 479 U.S. 130, 149 (1986) (citations omitted)). The FAA and its corresponding regulations, in prescribing a standard of care for the safety of airline travel, has created an "overarching general standard of care." Abdullah, 181 F.3d at 365. Central to that standard is section 91.13 of the Code of Federal Regulations, prohibiting the careless or reckless operation of an aircraft. 14 C.F.R. § 91.13. Therefore, the standard of care covering air safety to which Continental must adhere is federal.
Consistent with Abdullah, however, the Court holds that the plaintiff may still seek state remedies for her injuries. See Abdullah, 181 F.3d at 375. Indeed, in addition to its saving clause, which specifically mentions remedies, 49 U.S.C. § 40120(c), the FAA contains provisions expressly requiring an air carrier to maintain liability insurance to cover claims for "bodily injury to, or death of, an individual . . . resulting from the operation or maintenance of the aircraft." 49 U.S.C. § 41112(a); see also Abdullah, 181 F.3d at 375-76. As a result, the Court's holding of federal preemption does not prevent the possibility that Shupert may recover a state damage remedy.
B. Timeliness
Continental argues that Shupert belatedly raises a new "overcrowding" theory of law. (Def. R. Mem. at 1-3.) In her memorandum, Shupert states that airlines have a duty to protect passengers from other travelers, and that Continental breached this duty, pointing out that numerous passengers were attempting to retrieve their luggage at once, and that Continental should have acted to insure this took place safely. (Pl. Mem. at 2-3 (citing Aponte v. Trans World Airlines, Inc., No. 94 Civ. 6337, 1996 WL 527339, at *3 (citing Stagl, 52 F.3d at 468 n. 1)).) In arguing that this theory should be barred, Continental states that it requested via interrogatories that Shupert "set forth each and every way it is claimed that the defendant was negligent." (Def. R. Mem. at 1-2.) Continental then quotes her response, which makes no mention of overcrowding. Id. at 2. Continental suggests that she raises this theory only to allow her to use Stagl as controlling authority. Id. at 3.
In Shupert's response, however, she identified as one of her theories Continental's "failing to exercise reasonable care." (See Def. R. Mem. at 2.) And, contrary to Continental's description, Stagl was not based on a special situation of overcrowding. In Stagl, an elderly passenger was injured at the baggage carousel in the airline's terminal, in a situation described as "bedlam." Stagl, 52 F.3d at 466. Decided under New York law, Stagl was not based on Delta's failure to control a crowd, but on the "alleged absence of a reasonably safe system of passenger luggage retrieval." Id. at 472 ("[T]he existence of an unruly crowd, although certainly a relevant factor, is only one element to be considered in determining whether, in the context of the events, Delta breached its duty of reasonable care to Mrs. Stagl."). Although Stagl may well be distinguishable, Shupert's theory is not inconsistent with prior pleadings and discovery, and will not be barred from consideration because of timeliness.
C. Standard of Care
The injuries in the current case were caused by a crutch that was placed in the overhead compartment. As stated above, Shupert's primary theory is that the airline owed a duty to its passengers, which it breached, to insure that passengers removed items in a reasonable and safe manner. (Pl. Mem. at 3.) Continental argues that Shupert is unable to cite any federal standard that Continental breached. (Def. Mem. at 13.)
That Continental allowed crutches to be stored in an overhead compartment is not, on its own, indicative of carelessness or recklessness. In cases in this Circuit involving similar injuries, the courts have denied summary judgment for defendants based upon the unusualness of the item stored overhead. See, e.g., Aponte v. Trans World Airlines, Inc., No. 94 Civ. 6337, 1996 WL 527339 (S.D.N.Y. Sept. 16, 1996) (radio); Barerra v. Am. Airlines, Inc., No. 98 Civ. 2685, 2002 WL 1059160 (S.D.N.Y. May 24, 2002) (golf club); Monter v. Delta Air Lines, Inc., No. 00 CV 0244E, 2002 WL 1628086 (W.D.N.Y. June 24, 2002) (golf bag). The crutches here are different. A number of regulations have been promulgated specifically requiring that crutches be readily available to their owner. The regulation entitled "Stowage of personal equipment", promulgated with the part of the regulations implementing the Air Carrier Access Act of 1986, Pub.L. No. 99-435 § 2(a), 100 Stat. 1080 (codified as amended at 49 U.S.C. § 41705), see 55 Fed. Reg. 8008, 8035-38 (March 6, 1990), and dealing with nondiscrimination on the basis of disability, states that "[c]arriers shall permit qualified individuals with a disability to stow canes and other assistive devices on board the aircraft in close proximity to their seats, consistent with the requirements of FAA safety regulations for carry-on items." 14 C.F.R. § 382.41(c). Significantly, so long as they comport with other regulations governing carry-on luggage, these "assistive devices" are exempt from the carry-on baggage limitations. Id. § 382.41(d); see also id. § 121.589 (setting forth guidelines for carry-on baggage); Continental Airlines Approved Carry-On Baggage Program ¶ (B)(6), Bayley Aff. Ex. G.
There does not appear to be a regulation, aside from those cited, that covers the duty of the airline crew to supervise the deplaning process. However, as mentioned in the discussion of preemption above, there is a general standard of care governing aircraft operation: "No person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another." 14 C.F.R. § 91.13(a). Activity on aircraft must comport with that basic guideline, even in the absence of a more specific regulation covering the subject matter. "[I]n determining the standards of care in an aviation negligence action, a court must refer not only to specific regulations but also to the overall concept that aircraft may not be operated in a careless or reckless manner." Abdullah, 181 F.3d at 371.
New York statutory law on this issue uses nearly identical language, potentially rendering the preemption discussion above largely academic: "No person shall operate an aircraft in a careless or reckless manner so as to endanger the life or property of others." N.Y. Gen. Bus. L. § 245(1) (McKinney 1988).
Negligence cases are generally not well-suited to summary adjudication, among other reasons, "because, in the determination of issues revolving about the reasonableness of conduct, the values inherent in the jury system are rightfully believed an important instrument in the adjudicative process." Havas v. Victory Paper Stock Co., 49 N.Y.2d 381, 388 (1980) (citation omitted), quoted in Aponte, 1996 WL 527339, at *2. Continental points out that the overhead bin was open for several minutes before the crutch fell and struck Shupert. (Def. Mem. at 16-17.) However, "an intervenor's actions will not break the necessary chain of causation where they are `a normal or foreseeable consequence of the situation created by the defendant's negligence.'" Stagl, 52 F.3d at 473 (quoting Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 315 (1980)), quoted in Aponte, 1996 WL 527339, at *3. Therefore, neither the delay after the bin was opened nor the fact that the immediate actor was a fellow passenger, and not a member of the flight crew, shields Continental from liability as a matter of law.
Continental's alleged failure to supervise passengers as they removed baggage from the compartments may be found to be in violation of the federal safety standard. Continental agrees that it has a duty to protect its passengers. (Def. R. Mem. at 5.) In this case, the owner of the crutches stated that, as the unidentified passenger pulled the crutch out for her, "everybody was trying to grab things all at the same time." (Mathieson Dep. at 43; see also id. at 38 (stating that multiple passengers were grabbing things out of the same bin).) Because the flight crew knew that the crutches — potentially unwieldy items — were in the overhead bin, and because it is reasonably foreseeable that passengers will unsafely grab for items overhead, Shupert's allegations and evidence raise an issue of fact appropriate for consideration by a jury.
Continental is entitled to show at trial that it took adequate measures to ensure that passengers retrieved their luggage safely after its aborted flight. Ultimately, however, whether Continental was careless in managing the disembarking procedures is a question appropriately left for a jury.
Conclusion
For the foregoing reasons, Defendant's motion for summary judgment is denied.
So Ordered.