The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
There are currently three motions before the Court.
1. Defendants Voyagers International Tours, Inc. ("Voyagers") and Boyd Norton ("Norton") (collectively, "defendants") move for summary judgment (Dkt. No. 79);
2. Plaintiff cross-moves for discovery (Dkt. No. 80); and
3. Plaintiff makes a supplemental cross motion to compel discovery (Dkt. No. 89).
This action stems from the death of Donald Hall, plaintiff's decedent, when he was trampled by a wild elephant during a photographic safari to Namibia. Plaintiff sued Voyagers, the tour operator; Norton, the photographic leader of the safari; and Wilderness Safaris Namibia ("Wilderness"), the ground operator and provider of the safari guide. Plaintiff voluntarily dismissed his claims against Wilderness.
Summary Judgment Motion (Dkt. No. 79)
The Court has thoroughly reviewed the parties' submissions, including the deposition transcripts. Based on this review, the Court concludes that defendants have not established their entitlement to judgment as a matter of law with respect to plaintiff's claims against Voyagers. There is evidence in the record that, if believed by a jury, would support a determination of direct negligence on the part of Voyagers. Further, there is evidence that would support a determination that Voyagers was vicariously liable for the conduct of Wilderness under a theory of apparent agency or agency by estoppel. Moreover, although it is not strong, the evidence regarding Norton's relationship to Voyagers is sufficient to allow the case to go forward on the theory that Voyagers is vicariously liable for the conduct of Norton.
Further, although again it is not strong, the evidence regarding Norton's role in the tour and his conduct on the day of the attack is sufficient to raise questions of fact regarding whether Norton owed any duty to decedent and whether he was negligent. The Court is aware that duty is a legal question for the Court; here, however, determination of the nature of Norton's duty (if any) depends on determination of underlying factual issues.
The Court rejects defendants' contention that summary judgment is warranted on the ground that as a matter of law the risks posed by wild animals, including elephants, was an open and obvious danger of which decedent was aware. Likewise, the Court rejects defendants' contention that as a matter of law the actions of Homer Papageorge, a tourist from another group, in shouting and throwing rocks constituted a superseding cause severing any connection between Norton's actions and decedent's death. Nor can it be said on this record that plaintiff's failure to designate experts is fatal to his claims. Defendants' motion for summary judgment is denied in all respects.
Plaintiff's Cross Motion for Discovery (Dkt. No. 80)
Plaintiff cross moves (Dkt. No. 80) for discovery of documents, stating that he became aware of their existence during the telephonic depositions of Andy Payne and Dave van Smeerdijk, employees or agents of Wilderness or its parent company. As noted, Wilderness is no longer a party to this action. Rodney E. Gould, Esq., counsel for Voyagers and Norton, also represented Wilderness while it was a defendant and at the ...