United States District Court, S.D. New York
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge.
On January 3, 2011, Plaintiff Francis Baez was injured on the tarmac of John F. Kennedy International Airport ("JFK") when he fell out of a vehicle that was owned and maintained by Defendant Delta Airlines, Inc. Plaintiff initiated this action in New York State Supreme Court on April 10, 2012, alleging that Delta was negligent in its ownership, repair, maintenance, upkeep, servicing, and/or inspection of that vehicle. Delta removed the action to this Court on May 9, 2012, and now moves for summary judgment. Because Plaintiff has failed to identify a genuine issue of material fact concerning his claim of negligence, Defendant's motion is granted.
The Court assumes familiarity with the facts and procedural history set forth in its prior decision denying Plaintiff's motions for spoliation sanctions and for leave to amend the complaint, Baez v. Delta Airlines, Inc., No. 12 Civ. 3672 (KPF), 2013 WL 5272935, at *1-4 (S.D.N.Y. Sept. 18, 2013), as well as the Court's rulings therein. For convenience, the particular facts relevant to this motion are set forth below.
A. The January 3, 2011 Accident
In January 2011, Plaintiff was employed at JFK by Aramark Aviation Services Limited Partnership ("Aramark"). (Def. 56.1 ¶ 2). Delta had engaged Aramark, pursuant to the terms of an Airport Master Services Agreement (the "Contract"), to service Delta aircraft at JFK. ( Id. at ¶ 6). Under the terms of the Contract, Aramark was permitted to use Delta's vehicles in order to service the aircraft, but could return them to Delta if and when maintenance or repairs were needed. ( Id. at ¶ 8; Pl. 56.1 Response ¶¶ 8, 9; Pl. 56.1 ¶ 31).
On January 3, 2011, Plaintiff and two of his Aramark co-workers, Victoriano Ysabel and Fernando Cisneros, were servicing Delta aircraft on the JFK tarmac. (Def. 56.1 ¶¶ 3, 7, 15, 16). Their shift began around 1:00 p.m., when Plaintiff and his co-workers were assigned the use of a box truck, which had two seats with seatbelts in the front, and no seats or seatbelts in the rear cargo compartment. (Pl. 56.1 Response ¶ 29; Ysabel Tr. 38-39). Plaintiff and his co-workers used the vehicle throughout the day without incident. (Ysabel Tr. 46).
At approximately 6:30 p.m., Plaintiff and his co-workers had just finished servicing a plane. (Ysabel Tr. 46; Baez Tr. 4). They were running late and were rushing. (Ysabel Tr. 46). Ysabel, the driver, notified Plaintiff and Cisneros that he intended to move the vehicle. (Def. 56.1 ¶ 20). Plaintiff and Cisneros were aware that Ysabel was going to move the vehicle, and decided to sit in the rear compartment; Ysabel was aware they were sitting in the rear compartment. ( Id. at ¶¶ 15, 20). Plaintiff was sitting on a cardboard box that was not secured in any way. (Def. 56.1 ¶¶ 15, 29; Pl. 56.1 Response ¶ 29; Def. 56.1 Reply ¶ 29; Baez Tr. 40). The curtain in the rear compartment, which is designed to prevent items from falling out of the truck onto the tarmac, was open. (Def. 56.1 ¶ 16; see generally Ysabel Tr. 47-48). Ysabel testified that when he shifted the vehicle's gear from park into drive, "the truck just took off fast." (Pl. 56.1 ¶ 36; Ysabel Tr. 18). As a result, Plaintiff and Cisneros "fell" out of the vehicle; Plaintiff suffered a fractured right elbow, as well as injuries to his right foot, ankle, and ribs. (Baez Tr. 10).
B. Ysabel's Pre-Accident Complaint about the Vehicle
Ysabel testified that he had experienced unintended acceleration with the vehicle prior to the day of the accident; his deposition testimony on that matter, however, is both confusing and inconsistent. For one thing, Ysabel was less than clear in defining the nature (and, by extension, the cause) of the problem: He first suggested that the problem was with the vehicle's gas pedal; he testified that several days prior to the accident, the vehicle "had problems... with the accelerator... [t]he accelerator would get stuck." (Ysabel Tr. 14). However, Ysabel also suggested that the problem was with the vehicle's transmission, explaining that "when you put it in the parking shift, it would continue to accelerate and that's what happened on the day of the accident." ( Id. at 15).
Similar problems beset counsel's efforts to have Ysabel compare what he had observed a few days before the accident with what he had observed on the date of the accident. At times, Ysabel suggested that the unintended acceleration he had complained of a few days earlier was "the same" as the unintended acceleration he experienced on the day of Plaintiff's accident. (Pl. 56.1 ¶ 37). For instance, in response to questioning from Plaintiff's counsel, Ysabel stated that on the day of the accident, "the truck did the same thing that I had previously reported and it got stuck, the accelerator got stuck. That's exactly what happened." (Ysabel Tr. 19-20; see also id. at 14-15). Elsewhere in his deposition, however, Ysabel clarified that what happened with the vehicle on the day of the accident was meaningfully different. Of note, Ysabel explained to Defendant's counsel that, "I put the truck in drive  I let go of the brake, [and] the truck was already going." ( Id. at 52; see also id. at 18 (noting that when he shifted into drive "the truck just took off fast"), 53 (noting that the vehicle was "already accelerating" when he took his foot off of the brake)). Ysabel further testified that on the day of the accident, "[w]hen I started the truck [it] jumped very fast, [so] I attempted to put the brake on, but because it was stuck to the accelerator, the option I took was to turn off the engine and that's what I did." ( Id. at 57).
Seeking clarification as to the similarity vel non between the two incidents to which Ysabel had testified, counsel for Defendant asked Ysabel several times whether Ysabel had applied any pressure to the gas pedal immediately prior to the accident. (Ysabel Tr. 49-53). Ysabel initially refused to answer, claiming that he could not answer the question, and that "[t]here are questions that have no answers." ( Id. at 51). Ysabel ultimately responded, "I don't think I put the foot on the accelerator because the truck just went out very fast." ( Id. at 52; see also id. at 53).
Ysabel testified that he reported the vehicle's pre-accident episode of unintended acceleration to Delta. More to the point, Ysabel claimed that after that incident, he brought the vehicle to "the shop" and "reported that the truck had problems with the accelerator." (Ysabel Tr. 19).
Delta's Ground Support Equipment ("GSE") department at JFK is responsible for performing all vehicle maintenance and repair on Delta vehicles. (Def. 56.1 ¶ 11; Pl. 56.1 Response ¶ 11; Def. 56.1 Reply ¶ 11). Delta's standard practices provide that if and when a vehicle is returned to the GSE department for repairs, any maintenance or repairs performed on that vehicle are recorded in Delta's electronic records system, which is known as EBIS. (Def. 56.1 ¶ 12). Accordingly, any complaints made to Delta about its vehicles should be recorded in EBIS. ( Id. at ¶ 13; Pl. 56.1 Response ¶ 13; Def. 56.1 Reply 13).
There are no complaints in EBIS regarding unintended acceleration for the vehicle for the two years preceding Plaintiff's accident. (Def. 56.1 ¶ 14). Yaskada Tejada, Ysabel's immediate supervisor at Aramark, testified that she was aware of no complaints made by anyone at Aramark to anyone at Aramark or Delta about the vehicle's alleged acceleration issue prior to the accident. ( Id. ¶ 28; Tejada Tr. 51-52). Similarly, Aramark does not possess any records of Ysabel's alleged complaint regarding the unintended acceleration. (Def. 56.1 ¶ 27). There is no evidence Delta performed any repairs or maintenance on the vehicle following Ysabel's complaint; to the contrary, Delta's records indicate that the last service on the vehicle occurred more than one week before the accident, and involved the repair of broken headlights. (Crowley Decl., Ex. L, Work Order JFK0578756). Nonetheless, Ysabel testified that the vehicle was in "the shop" for two to three days, and that Plaintiff's accident occurred on the first day the vehicle was released back into service. (Ysabel Tr. 14).
C. Post-Accident Mechanical Inspections
Immediately after the January 3, 2011 incident, Delta mechanic Phil DeVito drove the vehicle from the accident site to the GSE garage, and observed that there was "nothing wrong" with the vehicle, particularly with the accelerator or the brakes. (DeVito Tr. 27). In an affidavit submitted in support of this motion, DeVito avers that upon arriving at the scene of the accident, he was told that the driver had complained of the gas pedal "sticking." (DeVito Aff. ¶ 3). Accordingly, DeVito performed a series of preliminary evaluations on the vehicle at the scene of the accident, aimed at evaluating those causes of unintended acceleration with which DeVito was familiar. ( Id. at ¶ 4). DeVito examined the area around the gas pedal for debris; he found none. ( Id. ). DeVito examined the gas pedal to determine whether it was sticking; it was not. ( Id. ). DeVito checked the brake pedal to determine whether it was operating normally; it was. ( Id. ). Lastly, DeVito checked whether the transmission was faulty as he shifted the vehicle into gear; there was no unintended acceleration. ( Id. ). DeVito drove the Vehicle back to the GSE shop, and did not experience any unintended acceleration while doing so. ( Id. ).
DeVito made an entry in EBIS noting that a post-accident safety check was needed, and that the "vehicle [was] involved in accident, driver claims vehicle jumped into gear and accelerated." (DeVito Tr. 27; EBIS Records). DeVito left at the end of his shift; another GSE mechanic performed a postaccident safety check shortly thereafter, and made no repairs to the vehicle. (Def. 56.1 ¶ 23; DeVito Tr. 27).
As is standard protocol when an accident at JFK results in injury, a representative from the Port Authority of New York and New Jersey (the "Port Authority") removed the license plates from the vehicle on the day of the accident, pending a final safety inspection by the Port Authority. (Syska Tr. 16-17). The vehicle passed a Port Authority safety check the ...