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MILLER v. BOMBARDIER

January 12, 1995

BRIAN J. MILLER and HEIDI G. MILLER, his wife, Plaintiffs, against BOMBARDIER, INC., a Canadian Corporation, Defendant. BOMBARDIER, INC., a Canadian Corporation, Third-Party Plaintiff, - against - ERNST & YOUNG and IAN WILSON, Third-Party Defendants.


The opinion of the court was delivered by: PETER K. LEISURE

 LEISURE, District Judge:

 This action arises out of a snowmobiling accident in Canada. Plaintiffs are Brian J. Miller ("Mr. Miller") and his wife, Heidi G. Miller ("Ms. Miller") (collectively, the "Millers"). The Millers are citizens of Connecticut. Defendant is Bombardier, Inc. ("Bombardier"), a Canadian corporation with its principal place of business in Montreal, Canada. Mr. Miller alleges that injuries that he suffered while riding a snowmobile in Canada were proximately caused by Bombardier's negligence. Ms. Miller alleges loss of consortium arising out of Mr. Miller's injuries. The amount in controversy exceeds $ 50,000 exclusive of interest and costs. This Court has subject matter jurisdiction based on diversity of citizenship pursuant to 28 U.S.C. ┬ž 1332(a)(2).

 Bombardier has moved for partial summary judgment limiting its potential liability to the Millers for non-economic damages to the amount allowable under Canadian law. For the reasons stated below, the motion is granted.

 BACKGROUND *fn1"

 The Millers are Connecticut domiciliaries. Bombardier is a Canadian domiciliary.

 Mr. Miller is a partner in the New York office of third-party defendant Ernst & Young. In early 1992, Bombardier invited Mr. Miller and two of his colleagues, including third-party defendant Ian Wilson ("Wilson"), to visit Bombardier's operations in Valcourt, Quebec, Canada. The purpose of the visit was to discuss financing for one of Bombardier's operations.

 Mr. Miller and his colleagues arrived in Valcourt on January 29, 1992. Following a meeting at Bombardier's offices, Bombardier officials organized a snowmobiling trip for Mr. Miller and his colleagues. After participating in a practice session, which consisted of riding snowmobiles in a field for approximately fifteen minutes, a group including Mr. Miller and Wilson set out to ride on a snowmobile trail. Mr. Miller rode fourth or fifth in the caravan of seven snowmobiles. Wilson rode the snowmobile behind Mr. Miller's. At the end of long straightway on the trail was a left turn, which Mr. Miller failed to negotiate. Instead, he proceeded straight ahead to an open area, then stopped. Wilson followed Mr. Miller into the open area, where he struck Mr. Miller's left leg with the front ski of his snowmobile, seriously injuring Mr. Miller.

 Immediately following the accident, Mr. Miller was treated by emergency medical personnel and taken to a hospital in Quebec. Mr. Miller was then flown to New York, where he underwent surgery. Mr. Miller then received rehabilitation treatment for several months in Greenwich, Connecticut. Mr. Miller returned to work part-time in May 1992 and is now working full-time again.

 The Millers instituted this action against Bombardier on or about January 22, 1993, Mr. Miller alleging negligence and Ms. Miller alleging loss of consortium. Bombardier, in turn, instituted a third-party action against Wilson and Ernst & Young, alleging that Wilson's negligence contributed to Mr. Miller's injuries and that Ernst & Young, as Wilson's employer, is liable for Wilson's negligence on a theory of respondeat superior.

 DISCUSSION

 "Summary judgment may be granted if, upon reviewing the evidence in the light most favorable to the non-movant, the court determines that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law." Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993). In deciding the motion, "the court is required to draw all factual inferences in favor of the party against whom summary judgment is sought." Balderman v. U.S. Veterans Administration, 870 F.2d 57, 60 (2d Cir. 1989). "Only when no reasonable trier of fact could find in favor of the nonmoving party should summary judgment be granted." Cruden v. Bank of New York, 957 F.2d 961, 975 (2d Cir. 1992); accord Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir. 1991).

 The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion" and identifying the materials in the record that "it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once a motion for summary judgment is properly made and supported, however, the burden shifts to the nonmoving party to "'set forth specific facts showing that there is a genuine issue for trial.'" Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (quoting Fed. R. Civ. P. 56(e)).

 Bombardier argues that it is entitled to partial summary judgment limiting its potential liability to the Millers for noneconomic damages to the amount of such damages allowable under Canadian law. The Millers respond that the extent of Bombardier's potential liability for non-economic damages should be controlled by New York ...


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