BRAMNICK, RODRIGUEZ, MITTERHOFF, GRABAS & WOODRUFF, LLC Gary J. Grabas, Esq., Scotch Plains, New Jersey, Attorneys for Plaintiff.
WHITE AND WILLIAMS LLP Paul Pianalto III, Esq. Geoffrey F. Sasso, Esq., Paramus, New Jersey, Attorneys for Defendant AFCO AvPorts Management LLC.
DICKINSON R. DEBEVOISE, District Judge.
On September 23, 2009, Plaintiff Mary Beam tripped and fell over a series of pedestrian line stanchions located at the Terminal A2 security checkpoint of Newark Liberty International Airport, which resulted in medical injuries. On September 17, 2010, Ms. Beam filed a Complaint against Defendants Port Authority of New York and New Jersey ("Port Authority"), Transportation and Security Administration ("TSA"), Jet Blue Airways ("Jet Blue"), and fictitiously named corporations and individuals, for negligence. On March 18, 2011, Ms. Beam filed an Amended Complaint containing additional factual allegations. On September 23, 2011, Ms. Beam moved to file a Second Amended Complaint against the TSA and fictitiously named corporations and individuals, which was granted on November 22, 2011. On December 22, 2011, Ms. Beam moved to file a Third Amended Complaint to add AFCO AvPorts Management LLC ("AFCO"), Continental Airlines, United Continental Holdings, and Gateway Group One, and to reinstate Jet Blue and the Port Authority, as Defendants. That motion was granted on January 17, 2012, and the Third Amended Complaint was filed on March 12, 2012.
AFCO now moves for Summary Judgment in its favor on Ms. Beam's negligence claim. For the reasons set forth below, AFCO's motion is GRANTED.
The basis of Defendants' liability alleged in the Complaint and Amended Complaints is that Defendants "either owned, maintained and/or controlled the premises" where Ms. Beam fell. On January 11, 2011, Jet Blue sent a letter to Ms. Beam and the Port Authority stating that (1) Jet Blue had no ownership or authority over the area in which Ms. Beam fell; (2) the TSA has exclusive control over that area; and (3) Jet Blue should therefore be dismissed from this action. See (Grabas Cert., Ex. C.)
On May 6, 2011, in response to Ms. Beam's discovery demands, the Port Authority submitted a certification of Fred Longernecker, Principal Property Representative for the Port Authority at Newark Airport. The certification states that "the A2 security checkpoint screening area is operated and controlled exclusively by the Transportation Security Administration" (Longernecker Cert. § 5). However, "the airlines operating out of Terminal A are ultimately responsible for the cleaning and maintenance of non-exclusive areas within the terminal, " including the A2 security checkpoint screening area. (Id. at § 6) "The airlines have secured various cleaning contracts for the non-exclusive areas and said contracts are managed by way of a third-party administrator, namely AFCO d/b/a AvPorts." (Id.)
Mr. Longernecker further certifies that "[a]s for the cleaning and maintenance of the A2 security checkpoint screening area, while the ultimate burden lies with the airlines, the TSA has chosen to secure their own independent cleaning contractor over concerns involving security and in an attempt to control access to the screening equipment. As such, I certify that the Port Authority has no responsibility or obligation to clean or maintain the A2 security checkpoint screening area." (Id. at § 7). "The responsibility for the day-to-day configuration and management of the A2 security checkpoint screening area lies exclusively with the TSA. The TSA is responsible for the placement of floor mats... as well as the placement of stanchions...." (Id. at § 8.)
On June 20, 2011, in response to Ms. Beam's interrogatories, the TSA stated that it "procures and uses footprint' and anti-fatigue floor mats in the A2 security checkpoint screening area in Terminal A of Newark Airport. Air carriers, such as Continental Airlines, also procure and use floor mats that may be used in and around the A2 security checkpoints screening area in Terminal A of Newark Airport." (Grabas Cert., Ex. F.) However, "the carpeting in Terminal A is not placed, removed, or maintained by the TSA." (Id.) The TSA further maintained that "the Port Authority and air carriers are responsible for placing and removing the stanchions at the A2 security checkpoint screening area in Terminal A of Newark Airport. To the extent that the stanchions have been procured by TSA, TSA maintains them." (Id.)
On July 1, 2011, in response to discovery requests, the Port Authority provided Ms. Beam with a copy of a work permit issued by the Port Authority to AFCO under which AFCO would "provide building janitorial and maintenance services on Permitted Areas of the Airport to Approved Aircraft Operators or other Persons at the Airport...." (Grabas Cert., Ex. 6.)
On September 8, 2011, Ms. Beam entered into a Stipulation of Dismissal of her claim against the Port Authority. On September 9, 2011, in response to discovery requests, the TSA again maintained that "the Port Authority and air carriers are responsible for placing and removing the stanchions at the A2 security checkpoint screening area in Terminal A of Newark Airport." (Grabas Cert., Ex. H.)
On September 23, 2011, in her Second Amended Complaint, Ms. Beam continued to pursue the TSA and fictitious defendants who "maintained, controlled and [were] responsible for the assembly, set-up and display of the pedestrian line stanchions at the security checkpoint within the corridor/terminal leading towards gates A20-28 located within the Newark International Airport."
On October 13, 2011, Ms. Beam's counsel took Mr. Longernecker's deposition, where he testified that the A2 security checkpoint area is maintained by the TSA, and that the stanchions in that area are owned, configured, and maintained by the TSA. He testified that a TSA employee at one point told him that the TSA owned the stanchions and that Port Authority employees were not allowed to touch or move them. Ms. Beam's counsel then introduced a Port Authority document stating that "The Port Authority contract guard shall reconfigure stanchions and podiums... to ...