The opinion of the court was delivered by: Matsumoto, United States District Judge:
Plaintiffs Chana Adato ("Mrs. Adato") and Chaim Adato ("Mr. Adato") bring this action against Gala Tour, Inc. ("Gala"), MGV Express Bus Co. Inc. ("MGV"), Alex Dubignin ("Dubignin"), an employee and bus driver of MGV, and Discover America, LLC ("Discover") (collectively, "defendants"), alleging that defendants' negligence "in the ownership, operation, maintenance, management, control, repair, installation, and use" of a tour bus caused plaintiff to sustain permanent and serious injuries. (ECF No. 67, Ex. A, Complaint dated July 23, 2007 ("Compl.") at ¶¶ 21-22.)
Defendants MGV and Dubignin timely removed the action to federal court on the basis of diversity jurisdiction. (ECF No. 1, Notice of Removal, dated Sept. 26, 2007; ECF No. 67, Ex. C, Civil Cover Sheet, dated Sept. 26, 2007.) Mr. Adato joined the suit, alleging loss of consortium, on January 5, 2010. (ECF No. 42, Memorandum and Order, dated January 5, 2010.)
Presently before the court are defendants' motions for summary judgment seeking dismissal of plaintiffs' actions pursuant to Federal Rule of Civil Procedure 56(b). (ECF No. 67, MGV's and Dubignin's Notice of Motion for Summary Judgment, dated Oct. 20, 2010; ECF No. 67-2, Memorandum of Law in Support of Defendants' Motion for Summary Judgment ("MGV Mem."); ECF No. 71, Defendant Discover America's Notice of Motion for Summary Judgment ("Discover Mem."), dated Oct. 20, 2010; ECF No. 72, Defendant Discover America's Affirmation in Support of Motion for Summary Judgment ("Discover Aff."), dated Dec. 21, 2010.) Defendants MGV and Dubignin argue that summary judgment is appropriate because plaintiffs are unable to establish negligence on the part of MGV and Dubignin. (See MGV Mem.) Defendant Discover argues that summary judgment should be granted because (1) plaintiffs have failed to establish a prima facie case of liability against Discover, and (2) even if plaintiffs could prove a prima facie case of negligence, Discover cannot be held liable because it did not control the bus. (See Discover Mem.)
Plaintiffs oppose defendants' motions for summary judgment and cross-move for an order imposing an adverse inference due to alleged spoliation of relevant evidence by defendant MGV pursuant to Federal Rule of Civil Procedure 37. (ECF No. 69-2, Memorandum of Law in Support of Plaintiff's Opposition to Defendants' Motion for Summary Judgment & Plaintiffs [sic] Cross Motion as to Spoliation ("Pl. Opp. MGV"); ECF No. 69-4, Memorandum of Law in Support of Plaintiff's Opposition to Defendant Discover America Motion for Summary Judgment ("Pl. Opp. Discover").) For the reasons set forth below, defendants' motions for summary judgment are granted, and plaintiffs' cross-motion for an adverse inference due to spoliation is denied.
The following facts, taken from the parties' statements pursuant to Local Civil Rule 56.1, are undisputed unless otherwise indicated. The court has considered whether the parties have proffered admissible evidence in support of their positions and has viewed the facts in a light most favorable to the nonmoving plaintiffs.
On October 26, 2006, plaintiff Chana Adato and her husband, plaintiff Chaim Adato, both Israeli citizens, were passengers on a tour bus provided by defendant MGV and driven by defendant Dubignin, who at all relevant times was an employee of MGV. (ECF No. 67, Defendants' Local Rule 56.1(a) Statement of Material Facts in Support of Motion for Summary Judgment ("MGV 56.1 Stmt.") at ¶¶ 1-2; ECF No. 69, Plaintiffs' Local Rule 56.1(A) Counterstatement of Material Facts in Opposition to Defendant's [sic] MGV Express Bus Motion for Summary Judgment ("Pl. 56.1 Stmt.") at ¶¶ 1-2; ECF No. 67, Ex. J, Deposition of Alexey Dubignin on Nov. 12, 2009 ("Dubignin Dep.") at 7, 34). The tour, arranged by defendant Discover, was led by Ilan Livneh ("Livneh" or "tour guide"), an employee of Discover. (ECF No. 67, Ex. I, Deposition of Ilan Livneh on July 17, 2009 ("Livneh Dep.") at 16.) Defendants Gala, MGV, and Discover were at all relevant times domestic corporations incorporated in the State of New York. (Compl. at ¶¶ 2-3.) The tour bus was a 36-passenger bus and was not at full capacity. (Livneh Dep. at 19; ECF No. 67, Ex. G, Deposition of Chana Adato on Sept. 30, 2009 ("Chana Adato Dep.") at 70; Dubignin Dep. at 47.) The bus was in good working order when Dubignin inspected it prior to embarking on the trip. (Dubignin Dep. at 36.)
At the time of the alleged incident, the tour bus was traveling from Hershey, Pennsylvania to Lancaster, Pennsylvania. (MGV 56.1 Stmt. at ¶ 2; Pl. 56.1 Stmt. at ¶ 2). Livneh was familiar with the route of the tour, as he had led tours of the same itinerary twenty times in 2006. (Livneh Dep. at 17.) Dubignin was also familiar with the itinerary. (Dubignin Dep. at 43-44.) On this particular section of the tour, Livneh usually chose at random different local roads to take from a map, in order to show the tour group the "lives of the Amish farms." (Livneh Dep. at 17.) Livneh would then tell the driver where to turn and what specific roads to take. (Id.)
On the day of the alleged incident, the weather was sunny and road conditions were normal. (Chana Adato Dep. at 55-56; Dubignin Dep. at 47-48.) None of the parties or witnesses could name the road the bus was traveling on, but Livneh and Dubignin testified that the bus was traveling on a paved two-lane road, with one lane in each direction. (Livneh Dep. at 55; Dubignin Dep. at 54.) Plaintiffs testified that the bus was traveling "straight," (ECF No. 67, Ex. H, Deposition of Chaim Adato on Oct. 1, 2009 ("Chaim Adato Dep.") at 24; Chana Adato Dep. at 87), but according to Dubignin, the road was hilly and winding with no shoulder, and was in a quiet residential area. (Dubignin Dep. at 54-55.) Dubignin said that he was not familiar with the road and that Livneh had chosen the road from a map. (Id. at 55-56.)
Plaintiffs did not identify any problems with the operation of the bus prior to the incident. Nor did plaintiffs know the speed of the bus immediately prior to the alleged incident and could not say whether it was accelerating or decelerating. Plaintiff testified that she felt safe on the bus and that "it was fine" prior to the incident. (Chana Adato Dep. at 78-79, 92, 276-77.) Dubignin testified that although he did not know the exact speed limit on the road, he drove under the speed limit, "very slowly," because the road was "winding and hilly." (Dubignin Dep. at 58-59.) He said the bus was traveling at approximately twenty to twenty-five miles per hour at the time of the alleged incident. (Id. at 84.)
At the time of the alleged incident, Mrs. Adato was sitting alone on the back bench of seats at the rear of the bus, directly facing the aisle. (Chana Adato Dep. at 81.) Mr. Adato was seated in the left row in front of her, in the aisle seat. (Chaim Adato Dep. at 22.) Livneh was standing in the aisle next to the bus driver, talking to the tour group. (Chana Adato Dep. at 95, 275.)
Immediately prior to the alleged incident, neither plaintiffs, Livneh, nor Dubignin noticed any bumps, depressions or potholes in the road. (Livneh Dep. at 54; Dubignin Dep. at 59-60; Chana Adato Dep. at 100.) Dubignin testified that the road conditions were okay but hilly, and that because the bus is long, "when you go from up and down then back up there is a moment here when you kind of feel uneasy." (Dubignin Dep. at 60, 81, 83.) He recalled that once at a particular moment, the bus was "kind of shaking" up and down because of the hills. (Id. at 60-61, 81, 83.) Dubignin explained that the bus did not actually leave the road, but that it felt "like on a ship when you're riding, a wave." (Id. at 82.)
When he felt the bus shaking, Dubignin switched on the engine brake, a retardant that helps the brakes slow or stop the bus. (Dubignin Dep. at 62.) Dubignin testified that he switched the engine brake on whenever he drove on a difficult road. (Id. at 64-65.) A few minutes after Dubignin switched the engine brake on, Dubignin was informed by Livneh that a woman was feeling sick. (Id. at 66.)
Mrs. Adato does not know the speed of the bus or whether it was accelerating or slowing at the time of the incident. She did not remember or know what caused the alleged incident. (Chana Adato Dep. at 92-93, 100.) She testified that she only remembers that she was "flown away," but didn't remember anything else. (Id. at 94, 97, 100.) She testified that she saw "everybody" in the bus get "flown off." (Id. at 98, 113.) Immediately prior to the incident, Mrs. Adato did not feel the bus veer from left to right, nor did she hear a horn or brakes or feel the bus change speed, and does not know if the bus went over a pothole or depression. (Id. at 96-97, 100.) Mrs. Adato could not estimate how far out of her seat she came, but she said the upper left side of her back came into contact with the back of the seat in front of her. (Id. at 107.) She also testified that she hit the top of her head and the back of her neck, but could not remember what she came into contact with. (Id. at 108.) Mrs. Adato testified that she lost consciousness, and when she regained consciousness she felt pain throughout her body, especially through the lower back and around the hips. (Id. at 111.) She testified that she was screaming from the pain. (Id. at 112.)
According to Mr. Adato, he did not see a bump in the road but he felt one, and he saw "everyone jump up." (Chaim Adato Dep. at 30.) He said that he jumped "[v]ery very high" because he was sitting in the back of the bus, which "is affected the most by the bumps." (Id.) When asked if his body actually left the seat cushion, Mr. Adato said that his "heart descended into [his] buttocks." (Id.) He then heard his wife calling for him and screaming about her back. (Id. at 34.)
Dubignin did not recall hearing any yelling or commotion immediately before learning of the alleged incident from Livneh. (Dubignin Dep. at 59.) After Livneh informed him that a woman was not feeling well, Dubignin was unable to immediately stop the bus because there was no shoulder on the road. (Id. at 66-67.) After Livneh again told him that the woman was ill, Dubignin pulled the bus into the parking lot of a restaurant off the side of the road. (Id. at 68.) Livneh then called the police on his cell phone. (Id. at 69.) According to Livneh, no one else was injured. (Livneh Dep. at 54.)
The police, firefighters, and an ambulance arrived on the scene. (Chana Adato Dep. at 121.) Mrs. Adato was carried out of the bus and placed on a stretcher. (Id. at 121-22.) She, accompanied by Mr. Adato, was taken to the hospital, where she received pain medication and an x-ray of her hip. (Id. at 127, 133-34.) Mrs. Adato was released from the hospital that same evening, after being told that her "back was turned over." (Id. at 137.)
Plaintiffs returned by car to Brooklyn, New York, where Mrs. Adato's daughter lives. (Id. at 139.) The car was sent by the tour company, Discover. (ECF No. 69, Ex. F, Deposition of Maya Trinquart-Azulai on October 22, 2009 at 32-33; Chaim Adato Dep. at 50-51.) Mrs. Adato was still in pain after arriving in ...