the plaintiffs had no interest in Denmark and contracted for a continuous trip, SAS's control and liability were continuous. Id. This was held to contravene the terms and purpose of Article 17 of the Warsaw Convention. Id.
The substance of the facts in Schmidkunz, 628 F.2d 1205, are identical to Rabinowitz, 741 F.Supp. 441. The plaintiff was injured on a moving walkway in the Denmark Airport while proceeding to a connecting SAS flight. Schmidkunz, 628 F.2d at 1206. The plaintiff had left the arriving airplane, was not closer than five hundred yards from the departing airplane's boarding gate and was still within the common passenger area of the terminal. Id. at 1207. She had not yet received her boarding pass, was not imminently preparing to board the plane and was not at that time under the direction of the carrier's personnel. Id. The court particularly noted the plaintiff's inability to identify who had advised her that the walkway was safe. The court noted that if the plaintiff had offered any evidence that the person was an SAS employee, it might have permitted the case to go to trial. However, the court affirmed the grant of summary judgment to SAS because the plaintiff was not "disembarking" within Article 17.
Although the Third Circuit has not had an opportunity to determine what factors should be considered in delineating what situations constitute "disembarking," it is appropriate to apply the factors described by the Day court. Once again the important factors include the location of the accident, the activity the Kantonides were engaged in at the time of the accident and the degree of control exercised by KLM.
Before the Kantonides deplaned in Amsterdam, KLM announced at what gate the connecting flights would depart. The Kantonides left the aircraft and proceeded toward their connecting flight. They left the arrival area and were standing on the moving walkway in the common area of the terminal when the accident occurred. T. Kantonides was injured approximately one-half hour after leaving flight 644. At the time of the accident, the Kantonides were moving through the terminal, pursuant to the KLM announcement, but they were proceeding at their own pace and under their own control. Resolving all inferences of fact in favor of the Kantonides, the facts of the Kantonides accident do not fit within the term "disembarking" under the Warsaw Convention.
The Kantonides assert that the words of the Warsaw Convention must be interpreted in light of the modern advances and changes in technology and design. Changes in technology, however, do not impact the elements set forth in Evangelinos and Day. The circumstances of the Kantonides accident do not fall within the phrase "in the course of any of the operations of embarking or disembarking." Accordingly, KLM's motion for summary judgment is granted as to Count One.
KLM moves for summary judgment on Counts Two and Three of the Complaint on the ground that no genuine issues of material fact exist. KLM further argues that the Kantonides have not established the existence of elements essential to a claim of negligence. Moving Brief at 4.
The Kantonides argue that KLM, as a common carrier, owed them the utmost duty of care to provide them with a safe means of traveling from KLM flight 644 to KLM flight 537. Complaint, P 9. The Kantonides assert that KLM breached this duty and that the breach was the direct and proximate cause of the injury. Id., P 10.
Under New Jersey law, "negligence is tested by whether the reasonably prudent person at the time and place should recognize and foresee an unreasonable risk or likelihood of harm or danger to others." Matute v. Lloyd Bermuda Lines, Ltd., 931 F.2d 231, 237 (3d Cir.), cert. denied., 112 S. Ct. 329 (1991); GNOC Corp. v. Aboud, 715 F.Supp 644, 651 (D.N.J. 1989) (quoting Rappaport v. Nichols, 31 N.J. 188, 201 (1989). The threshold inquiry, for an action in negligence is whether, as a matter of law, the defendant owed the plaintiff a duty of care. GNOC, 715 F.Supp. at 651; Huddell v. Levin, 537 F.2d 726, 734 (3d Cir. 1976); Morie Energy Management, Inc. v. Badame, 241 N.J. Super. 572, 576 (App.Div. 1990); Strachan v. John F. Kennedy Memorial Hosp., 109 N.J. 523, 529 (1988); Swidryk v. St. Michael's Med. Ctr., 201 N.J.Super. 601, 606 (Law Div. 1985).
Whether the defendant owed the injured party a duty of care is a question of fairness and requires weighing "the relationship of the parties, the nature of the risk and the public interest in the proposed solution." Wang v. Allstate Ins. Co., 125 N.J. 2, 15 (1991); Morie, 241 N.J.Super. at 576; Swidryk, 201 N.J.Super. at 606. The question of whether a duty exists is a question of law properly decided by the court. GNOC, 715 F.Supp. at 652; Wang, 125 N.J. at 15; Strachan, 109 N.J. at 529.
For a defendant to be liable, it must have breached a duty of care, which duty, if observed, would have averted the plaintiff's injuries. Fortugno Realty Co. v. Schiavone-Bonomo Corp., 39 N.J. 382, 393 (1963) overruled on other grounds Gilborges v. Wallace, 78 N.J. 342 (1978); Crispino v. U.S., 135 F.Supp. 587, 589 (D.N.J. 1955); Brody v. Albert Lifson & Sons, Inc., 17 N.J. 383, 389 (1955); Mazzilli v. Selger, 13 N.J. 296, 301 (1953). The standard of care in analyzing negligence cases is ordinarily what a prudent person would have foreseen and done under similar circumstances. GNOC, 715 F.Supp. at 651-52; Weinberg v. Dinger, 106 N.J. 469, 484 (1987); People Express Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. 246, 262 (1985). However, when the defendant is a common carrier, a heightened standard is applicable:
Carriers which accept passengers entrusted to their care must use great caution to protect them, which has been described as the 'utmost caution characteristic of very careful prudent men,' or 'the highest possible care consistent with the nature of the undertaking,' and this may include the relational duty to exercise control of the conduct of third persons.
Ricci v. American Airlines, 226 N.J. Super. 377, 381 (App. Div. 1988), cert. denied, 113 N.J. 639 (1988) (citation omitted). A carrier must exercise a high degree of care for the safety of its passengers so as to avoid the dangers that are known or reasonably anticipated. Id. at 382 (citing Harpell v. Public Service Coordinated Transport, 20 N.J 309, 317 (1956).
The New Jersey courts have not decided any cases bearing directly on the issue of an airline's duty to its passengers, once the passengers have left the aircraft and are in the common areas of the airport. "When a federal court is faced with a question of state law that has not been interpreted, it must 'predict how the New Jersey Supreme Court would rule if presented with this case.'" McWilliams v. Yamaha Motor Corp., 780 F.Supp. 251, 256 (D.N.J. 1991) (quoting Repola v. Mobark Indus., Inc., 934 F.2d 483, 489 (3d Cir. 1991)), appeal docketed, No. 91-6024 (3d Cir. 13 Dec. 1991). "'In predicting how the highest state court would decide an issue, the federal court may look to analogous state court cases, treatises, restatements and law review articles.'" McWilliams, 780 F.Supp. at 256 (quoting National-Standard Co. v. Clifton Ave. Corp., 775 F.Supp. 151, 157-58 (D.N.J. 1991)).
Analogous cases from the New Jersey state courts involve railroads and shopkeepers. In Buchner v. Erie RR. Co., 17 N.J. 283 (1955), the court held a railroad liable for failing to maintain a curb less than two feet beyond its property line upon which a departing passenger fell. The railroad did not own, construct or maintain the curb. Nonetheless, the court held that the carrier had a duty to maintain a reasonably "safe means of ingress and egress" for the use its passengers and had breached that duty. Id. at 286.
In Horelick v. Pennsylvania R. Co., 24 N.J.Super. 413 (App.Div.), aff'd, 13 N.J. 349 (1953), the court held a railroad liable for negligently maintaining a station platform. The plaintiff slipped on a piece of ice obscured by dirt as she exited the platform located next to the train. The court stated:
The duty of a carrier obtains not only while the passenger is in travel, but while they sustain the relationship of passengers or prospective or intended passengers and are performing acts reasonably and fairly attributable to that relationship. . . . To hold that by reason of a contractual arrangement between a carrier and a terminal company a carrier may be absolved of this duty to its passengers, is to constitute a distinction of duty without a difference of relationship for which we find no justification in our law.
Horelick, 24 N.J.Super. at 419 (citations omitted).
Numerous New Jersey state cases have held a commercial tenant, who is in exclusive possession of certain premises abutting a sidewalk, liable when pedestrians were injured due to the tenant's negligent maintenance of the sidewalk. Antenucci v. Mr. Nick's Mens Sportswear, 212 N.J. Super. 124, 130 (App. Div. 1986) (window shopper caught shoe in sidewalk); Warrington v. Bird, 204 N.J. Super. 611, 616-17 (App. Div. 1985) (diner hit by car crossing street between restaurant and restaurant's parking lot) cert. denied 103 N.J. 473 (1986); Merkel v. Safeway Stores, Inc., 77 N.J.Super. 535, 540 (Law Div. 1962) (customer fell on ice on sidewalk between store and store's parking lot). These cases reject, as a defense, the lack of control by the tenant over the land in question. The Warrington court stated:
We agree that the critical element should not be the question of the proprietor's control of the area to be traversed, but rather the expectation of the invitee that safe passage will be afforded from the parking facility to the establishment to which they are invited.
204 N.J. Super. at 617. This line of cases, however, deals only with tenants in exclusive control of the premises.
Recently, in Barrows v. Trustees of Princeton Univ., 244 N.J.Super. 144 (Law Div. 1990), a trial court refused to extend the duty of a tenant-proprietor in a multi-tenant property to areas not controlled or occupied by the tenant. The Barrows court declined to find the tenants of a shopping mall liable to a mall customer who fell on ice on an exterior sidewalk. The court stated:
Because tenants in a multi-tenant shopping mall will not, absent a contractual obligation, have control or maintenance responsibilities for common walkways or sidewalks, this court concludes that the duties imposed by . . . Antenucci do not extend to tenants in multi-tenant shopping complexes.
244 N.J. Super. at 148. The court granted summary judgment to all the defendant shopkeepers except one. Summary judgment was denied with regard to one shopkeeper because a common law negligence claim might be valid. He was in control of the awning that caused the ice to develop and should have been aware of the developing danger. Id. at 148-49.
Other state courts have dealt with cases factually similar to the case at bar. The majority have refused to hold that the air carrier owed its passengers a duty when the passenger was injured in a common area of the airport. These cases include Warshavesky v. El Al Airlines, 10 Av. Cas. (CCH) 18,315 (N.Y. Sup.Ct. 1969) (no duty for slip on staircase despite announcement to use stairs because defendant neither owned, occupied or controlled the area including stairs and no constructive notice of defective condition); Marshall V. United Airlines, 35 Cal.App.3d 84 (1st Dist. 1973) (no duty for fall due to step in disrepair far from arrival gate despite common carrier's higher duty of care because standard relaxed to reasonableness when passenger entered terminal and because defendant did not lease, own, maintain or control the location of the accident); Air Canada v. Smith, 357 So.2d 789 (Fla.Dist.Ct.App. 1978) (no duty for fall in baggage claim area despite fact plaintiff was proceeding to connecting flight; defendant did not own, maintain or control area where accident occurred and had no duty to look for possible perils on premises exclusively possessed, maintained and controlled by another entity); Powell v. Delta Air Lines, Inc., 16 Av. Cas. (CCH) 17,741 (N.Y.Civ.Ct. 1981) (no duty for fall on escalator ascending from defendant's terminal to main concourse of airport because defendant was one of a number of tenants in building and did not own, operate, maintain or control escalator).
The decisions of other state courts are not uniform and air carriers have been found to owe passengers a duty in central terminal areas. In Knoxville v. Bailey, 222 F.2d 520 (6th Cir. 1955), the court found defendant Delta Air Lines ("Delta") liable for injury sustained when one of its passengers waiting for a flight fell while attempting to descend steps just outside the terminal entrance.
Delta leased space within the terminal, but did not own, maintain or control the area of the accident. Upon finding no binding Arizona case law, the court held:
Without undertaking to review the [other state] cases, we think the best considered rule is that a common carrier should not be relieved from liability for injury to its passengers, resulting in unsafe condition of the station premises which they must use in order to board its trains or airplanes, by reason of the mere fact that such premises are under control of another company or a municipality with which the carrier has contracted for terminal facilities.
222 F.2d at 527. In Bailey, there was evidence that other people had been injured in this location and defendant had refused and neglected to place warning signs or install handrails. The jury verdict in favor of plaintiff was sustained. See also, Crowell v. Eastern Air Lines, Inc., 81 S.E.2d 178, 187 (D.N.C. 1954) (due to defects in threshold, passenger fell exiting waiting room of airport; Eastern liable because previous accidents provided notice of defect).
Under New Jersey law a common carrier, such as KLM, owes its passengers a duty to provide a reasonably safe means of ingress and egress. Buchner, 17 N.J. at 286; Horelick, 24 N.J. Super. at 419. This duty extends to areas not owned or controlled by the carrier, Buchner, 17 N.J. at 285, and continues while the relationship of carrier and passenger exists. Horelick, 24 N.J. Super. at 419. The duty cannot be avoided through a lease arrangement with the terminal. Id.
In this case, KLM owed the Kantonides a duty to provide a reasonably safe means of ingress or egress. However, that duty did not and does not encompass the common areas of the airport terminal. The present case involves a moving walkway a couple hundred feet from either of the KLM gates at issue. The proximity of the walkway is not comparable to a curb less than two feet from the defendant's property as in Buchner or to a platform adjacent to a train as in Horelick. It is impracticable to extend KLM's duty to provide safe ingress and egress to include the moving walkway. If KLM were found to owe passengers a duty of care with regard to distant premises that it does not own, lease, control or maintain, there would be no logical end to that duty. The Kantonides' argument that KLM owed them a duty the entire time they were traveling, because KLM required them to transfer airplanes in Amsterdam, is rejected. Kantonides Answers to KLM Interrogatories, Responses 7, 10.
Commercial tenants in exclusive possession of premises owe customers a duty to maintain an abutting property they neither own, lease, maintain nor control. Antenucci, 212 N.J. Super. at 130; Warrington, 204 N.J. Super. at 616-17; Merkel, 77 N.J. Super. at 540. However, commercial tenants in multi-tenant facilities do not owe customers a duty of care with regard to common areas not owned, leased, maintained or controlled by them. Barrows, 244 N.J. Super. at 148-49.
KLM is a commercial tenant and does not "exclusively possess" the common area of Schiphol Airport where the moving walkway is located. Dekker Aff. P 5; KLM 12G P 5. KLM does not own, lease, maintain or control the area of the terminal where the moving walkway is located. Dekker Aff. PP 6-7. Unlike the defendant in Barrows who was not granted summary judgment because it controlled the awning that caused the ice formation, KLM did not control the moving walkway that caused T. Kantonides' injury. There is no basis under New Jersey negligence law to impose a duty of care on KLM for the accident occurring on the moving walkway in the common area of Schiphol Airport.
This holding is in accord with the decisions of other states refusing to impose a duty of care on air carriers for maintenance of areas beyond their control. Warshavesky, 10 Av. Cas. (CCH) 18,315; Marshall, 35 Cal.App. 3d 84; Air Canada, 357 So. 2d 789; Powell, 16 Av. Cas. (CCH) 17,741. It is also in accord with the cases where air carriers were held to owe passengers a duty of care for these areas. Bailey, 222 F.2d 520; Crowell, 81 S.E.2d 178, 187. Unlike Bailey and Crowell, there is no suggestion that similar accidents had previously occurred so as to put KLM on notice.
Maintenance of the moving walkways was attended to by the Airport Authority. The Airport Authority stated that the moving walkways are,
systematically checked, every six weeks, on their operation. . . . [and] there is an annual inspection by the Dutch Lift (elevator) Institute required by the government. . . . These facilities are on government's instructions equipped with a stop button and provided on two sides with handrails so as to enable users to hold [on], which of course is of particular importance in case of an emergency stop.
Opp. Brief, Ex. C. Accepting as true the Kantonides' statement that the moving walkway "malfunctioned" or, in the alternative, the assertion that the emergency stop button was pressed, Opp. Brief at 4, there is no indication that KLM breached any duty which, if observed, would have averted the accident. Fortugno, 39 N.J. at 393; Crispino, 135 F.Supp. at 589; Brody, 17 N.J. at 389; Mazzilli, 13 N.J. at 301
Requiring an air carrier to be liable for injuries to passengers occurring beyond the areas within their control or their ability to regulate would violate principles of foreseeability and fairness. Wang, 125 N.J. at 15; Strachan, 109 N.J. at 529. In addition, the attendant risks associated with a moving walkway are not sufficient to warrant imposing a duty of care for their operation on air carriers. Morie, 241 N.J. Super. at 577; Swidryk, 201 N.J. Super. at 606.
As a matter of law KLM did not owe the Kantonides a duty of care at the time of the accident; therefore, the Kantonides are unable to meet the threshold inquiry into negligence. Summary judgment is granted with respect to Counts Two and Three.
For the reasons set forth above, the motion for summary judgment is granted with respect to all counts in the Complaint.
Dated: 9 September 1992