The opinion of the court was delivered by: Gold, S., M.J.
Plaintiff Marsha Somers ("Somers" or "plaintiff") alleges that she was injured on October 1, 2004, when she tripped and fell on a hole surrounding an exposed shutoff valve connected to a pipeline that services American Airlines, Inc., ("American Airlines" or "defendant") at John F. Kennedy International Airport ("JFK"). She brings this diversity action against defendant for failing to maintain or repair the allegedly defective condition. Defendant has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 on the ground that plaintiff cannot establish a prima facie case of negligence. More specifically, defendant contends that the undisputed evidence demonstrates that it did not own, control or derive a special use from the pipeline or property where plaintiff's accident took place. For the reasons that follow, defendant's motion for summary judgment is granted.
The facts are construed in the light most favorable to Somers, the non-moving party, and they are derived from the parties' Local Rule 56.1 statements, and the exhibits, depositions and affidavits submitted by the parties in connection with the pending motion.
On the evening of October 1, 2004, plaintiff Somers allegedly sustained injuries when she tripped and fell on a hole surrounding an exposed shutoff valve and pipeline in a parking lot at JFK. Def. 56.1 ¶ 1, Docket Entry 55. The area where plaintiff fell, known as the "Red Lot," is owned, operated and controlled by the Port Authority of New York and New Jersey ("Port Authority"). Id. ¶ 10. The Red Lot is adjacent to Terminal 8, which is operated by American Airlines pursuant to the terms of a lease between the Port Authority and defendant.*fn1 Id. ¶¶ 9-10.
After plaintiff fell, a Smarte Carte airport employee notified the Port Authority police, and Port Authority representative Roy Williams arrived on the scene. Id. ¶¶ 3-4. As part of his duties as a non-aeronautical airport supervisor, Williams conducted visual inspections of all areas in the airport, including the Red Lot, and responded to emergencies. Declaration in Support of Defendant's Motion for Summary Judgment ("Def. Decl."), Docket Entry 54, Ex. G at 8-9. Williams issued two reports of the incident. The "Port Authority Patron Accident Report" indicates that on October 1, 2004 at 11:45 p.m. plaintiff was found sitting in the "Red Lot between rows 6 and 7" and that she was injured from stepping into a hole in the pavement. Id. Ex. C. Similarly, the "Kennedy Airport -- Airport Operations Log" states that Somers tripped and fell over an exposed pipeline hole. Id. Ex. H.It further states that the Port Authority Maintenance Department "was called to the scene to identify the pipeline and cover the hole."*fn2
Id. The Port Authority applied a "cold patch temporary fix" to "prevent risk of further patron injuries until a proper cover could be set in place." Id. Ex. H. See also Def. 56.1 ¶ 5. There is no indication that American Airlines was notified of the incident at the time or that it made any of the subsequent repairs. Def. 56.1 ¶¶ 3, 5.
Plaintiff returned to the scene of the accident the following day to photograph the alleged defect, but the hole had already been filled with asphalt. Def. Decl.Ex. E ("Somers Dep.") at 108 & Ex. N (Page 1, top photograph). Plaintiff also obtained a diagram from American Airlines that appears to depict the underground pipelines in the Red Lot area. Id. Ex. O. Plaintiff has identified the location of the alleged defect on the diagram, and maintains that the pipeline that caused her accident is connected to a thermal distribution line that provides water to the terminals. Id.; Def. 56.1 ¶ 11.
Anthony Micieli, a utility database operator for the Port Authority, testified that the pipeline plaintiff identified is part of the Central Terminal Area and services all terminals at the airport. Def. Decl. Ex. M at 4, 36-37. Micieli further testified that Kennedy International Airport Cogeneration ("KIAC") is the entity that owns and is responsible for any repairs to the thermal distribution line, and that employees of American Airlines would have no reason to operate or use the shutoff valve where plaintiff fell. Id. at 37, 42; Def. 56.1 ¶¶ 11-12.
At the time of plaintiff's accident, American Airlines was doing construction on the terminals adjacent to the Red Lot. Lewis Walling, an American Airlines employee who supervised the project, testified that there was no actual construction work in the Red Lot, but that contractors used part of the Lot as a staging area for trailers and building materials. Def. Decl. Ex. F at 4-5, 19-20. Walling also testified that the contractors working on the American Airlines project did not do any excavation or repair work in the Red Lot. Id. at 23-24. Similarly, Donald Smith, Manager of Facilities Maintenance for American Airlines, stated in an affidavit that his department did not perform any maintenance or repair activities in the Red Lot at any time prior to plaintiff's accident. Def. Decl. Ex. I ¶¶ 1, 13. Thomas Amoia, a resident engineer for the Port Authority, stated that, at the time of the incident, American Airlines was doing work in the Red Lot, including installing a canopy structure, rerouting pedestrian walkways and "patch restoration on the excavation they dug." Id. Ex. K at 3-8, 13, 18-19. Plaintiff testified that she observed construction in the street in front of the airport terminal, but not in the Red Lot. Somers Dep. at 30. She further testified that she did not see any construction materials, such as dumpsters or trucks, in the Red Lot. Id. at 30-31.
On April 19, 2005, Port Authority claims investigator Nichelle Gracey sent a "takeover" letter to defendant, advising defendant that plaintiff's claim fell within the provisions of defendant's lease with the Port Authority and requesting that defendant "handle [the claim] to a conclusion." Plaintiff's Memorandum in Opposition ("Opp. Mem.") Ex. 2. Gracey sent three subsequent takeover letters; each of the letters appears to have gone unanswered by American Airlines. The first three letters state that the location of the incident was "Parking Lot #8." Id. The last letter, dated September 26, 2005, includes a notation that the location of the incident was not Parking Lot #8, but was instead the Red Lot. It further states that "American Airlines was doing work at the location of the incident." Id.In addition, Gracey testified that the Port Authority's file on plaintiff's claim includes a note from another Port Authority employee stating that Amoia had determined from looking at plaintiff's photograph of the defect that it "looked like a cover for some sort of water system covering which American Airlines would have sole jurisdiction over." Opp. Mem. Ex. 1 at 26-27. The photographs were also shown to another Port Authority resident engineer at JFK who was unable to identify the object in the photo. Id. at 27.