The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
In accordance with 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct all further proceedings in this case, including entry of final judgment. Dkt. #9.
Currently before the Court is defendants', Greyhound Canada Transportation, Corp., Greyhound Lines, Inc., and Jan Bandachowicz, motion for summary judgment. Dkt. #27. For the following reasons, defendants' motion for summary judgment is granted.
Plaintiff, Victor Farley, Public Administrator of the County of Erie, as Administrator of the Estate of Andrew M. Mutizira, deceased, commenced this action on or about December 23, 2002 in New York State Supreme Court, Erie County. Dkt. #1.
Thereafter, on or about April 29, 2003, the action was removed to the United States District Court for the Western District of New York on the basis of complete diversity of citizenship between the parties. Id. An amended complaint was served and filed on or about August 28, 2003 seeking damages for pain, suffering, death and pecuniary losses by reason of the defendants' alleged negligence, gross negligence, recklessness, and wanton disregard for the safety of the general public. Dkt. #12.
It is undisputed that on January 2, 2001, defendant Jan Bandachowicz was employed as a driver for Greyhound Canada Transportation, Corp. and/or Greyhound Lines, Inc. (hereinafter collectively referred to as "Greyhound") and was driving from Canada to the United States via the Peace Bridge. Dkt. #27, ¶ 7. On that same day, Andrew M. Mutizira (hereinafter, "the decedent"), purchased a Greyhound bus ticket for travel from Niagara Falls, Ontario, Canada to Buffalo, New York. Dkt. #12, ¶ 16. Plaintiff alleges that at an unspecified time on January 2, 2001, defendant Bandachowicz or an agent, servant or employee of Greyhound, "assisted [the decedent] into a compartment on the bus for the purposes of assisting [the decedent] in gaining entrance to the United States."*fn1 Id. at ¶ 26.
When the bus arrived in Buffalo, New York via the Peace Bridge, the bus stopped at Immigration and all passengers on the bus disembarked. Dkt. #27, ¶ 8; Dkt. #27, Exhibit C, p.10. Defendant Bandachowicz then moved the bus approximately five meters and all the luggage was removed from the bus. Dkt. #27, ¶ 8; Dkt. #27, Exhibit C, p.11. Thereafter, at the direction of an Immigration official, defendant Bandachowicz again moved the bus forward a short distance. Id. When moving the bus forward the second time, defendant Bandachowicz heard something that he thought sounded like a transmission problem followed by a "boom, boom" sound. Dkt. #27, ¶ 9; Dkt. #27, Exhibit C, pp.47-48. Defendant Bandachowicz immediately stopped the bus and walked to the back of the bus where he saw change, shoes and a green passport on the ground. Dkt. #27, ¶ 9; Dkt. #27, Exhibit C, p.53. Another driver came to assist defendant Bandachowicz and saw the body of the decedent. Id.
Following the accident, the local police department and the United States Department of Justice (Immigration and Naturalization Service*fn2 ) each conducted an investigation. The police report described the accident stating, "victim was a possible stowaway and was hiding underneath the bus when he got caught on the rear axles [sic] of the bus, causing death." Dkt. #27, ¶ 11; Dkt. #27, Exhibit D. The Erie County Medical Examiner's Office issued a Certificate of Death on January 3, 2001 and concluded that the manner of death was accidental and that the cause of death was "multiple blunt force injury to head, chest, right upper and left lower extremity." Dkt. #27, ¶ 12; Dkt. #27, Exhibit E. The United States Department of Justice investigation revealed that the decedent had attempted to enter the United States on January 1, 2001 at the Detroit International Bridge and was refused entry. Dkt. #27, ¶ 13; Dkt. #27, Exhibit F. The Department of Justice investigation further noted that the decedent was discovered "engaged in the rear axle of the bus." Dkt. #27, ¶ 14; Dkt. #27, Exhibit F. Finally, the Department of Justice investigation report stated, "[b]ased upon statements made by witness [sic] and the nature of [the decedent's] attempted entry into the United States, it is very unlikely that [the decedent] could have secure [sic] access to the rear compartment of the bus without the assistance of some other individual or individuals." Dkt. #27, Exhibit F.
Application of New York Law
Where, as here, jurisdiction is based on diversity of citizenship of the parties, this Court must apply the substantive law of the forum state, to wit, New York.*fn3
"Federal courts sitting in diversity cases will, of course, apply the substantive law of the forum State on outcome determinative issues." Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d Cir. ...