Price v . Candian Airlines CV-01-155-JM 04/11/06 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Donald Price, et a l .

v. Civil N o . 01-cv-155-JM Opinion N o .

Canadian Airlines, et a l .

O R D E R

The Plaintiffs, New Hampshire residents, claim that the

Defendants are liable in negligence because Canadian Airlines

employees proximately caused Donald Price to suffer injuries in

accidents that occurred on May 27 and May 2 8 , 2000. 1 The first

accident occurred while M r . Price was traveling as a passenger on

a Canadian Airlines flight. The second accident occurred while

Mr. Price was walking in an airport. Defendants move for partial

summary judgment as to the claim that the Defendants are liable

for the accident in the airport. The Plaintiffs object. For the

reasons set forth below, the motion is granted.

1 Defendants Canadian Airlines and Air Canada merged after the events at issue in this lawsuit. The merged company continued to do business as Air Canada. See Document N o . 2 0 . Since the instant motion is concerned with whether the acts or omissions of Canadian Airlines employees constitutes actionable negligence, I refer either to Canadian Airlines or to the Defendants collectively. Standard of Review

Summary judgment is appropriate only “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). A genuine issue is one “that properly can be resolved

only by a finder of fact because [it] may reasonably be resolved

in favor of either party.” Anderson v . Liberty Lobby, Inc.,

4 2 , 250 (1986). A material fact is one “that might affect

the outcome of the suit.” Id. at 248.

In ruling on a motion for summary judgment, the court

construes the evidence in the light most favorable to the

nonmovant. See Navarro v . Pfizer Corp.,

0 , 94 (1st

Cir. 2001). The party moving for summary judgment “bears the

initial responsibility of . . . identifying those portions of

[the record] which it believes demonstrate the absence of a

genuine issue of material fact.” Celotex Corp. v . Catrett,

1 7 , 323 (1986). Once the moving party has met its burden,

the burden shifts to the nonmovant to “produce evidence on which

a reasonable finder of fact, under the appropriate proof burden,

2 could base a verdict for i t ; if that party cannot produce such

evidence, the motion must be granted.” Ayala-Gerena v . Bristol

Myers-Squibb Co.,

6 , 94 (1st Cir. 1996) (citing Celotex,

; Anderson,

4 9 ) . Neither conclusory

allegations, improbable inferences, nor unsupported speculation

are sufficient to defeat summary judgment. Carroll v . Xerox

Corp.,

3 1 , 236-37 (1st Cir. 2002). 2

Background

Plaintiffs allege that on May 2 7 , 2000, during a Canadian

Airlines flight from Hong Kong, China, to Vancouver, Canada, a

flight attendant struck Donald Price’s right knee with a food

cart injuring his knee. The flight attendant gave M r . Price an

ice pack and aspirin. He was moved to the rear of the plane to a

seat where he was able to straighten his leg.

After the flight landed, Canadian Airlines provided a

2 With their objection, Plaintiffs filed a document entitled Plaintiffs’ Memorandum in Support of Their Objection to Defendant’s Motion for Partial Summary Judgment and Affidavit. See Document N o . 1 8 . It appears that the Plaintiffs intend the memorandum’s fact section to substitute for separate affidavits from Donald and Dorothea Price. The Plaintiffs swear under oath to the truth of the facts contained in the document at page 1 3 . Although this joint memorandum and affidavit format is unconventional and inconsistent with this court’s local rules, in the interests of justice, I treat it as sufficient to set forth the facts that Plaintiffs contend demonstrate that there is a genuine issue for trial under Fed. R. Civ. P. 56(e).

3 wheelchair for M r . Price because he was having difficulty

walking. As the Prices were getting off the plane, Captain Ball,

who was in charge of the flight, told Mrs. Price to “make sure

you get a wheelchair tomorrow” for M r . Price. The Prices spent

the evening in Vancouver since their next flight, from Vancouver

to Boston, Massachusetts, was scheduled to depart the next day.

On May 2 8 , 2000, the Prices arrived early at the Vancouver

Airport for their 2:00 p.m. flight to Boston. At the Canadian

Airlines check-in counter, Mrs. Price informed Katherine Fenton,

a Canadian Airlines customer service agent, that M r . Price’s knee

was injured on a Canadian Airlines flight the previous day. Mrs.

Price informed M s . Fenton that M r . Price needed a wheelchair

because he was still experiencing pain in his knee and was having

difficulty walking. Mrs. Price alleges that she told M s . Fenton

that: “we need help because the concourse is a half mile down and

two lower levels.”

The Plaintiffs allege that M s . Fenton told them, in

substance, that no wheelchairs were available, and that the

airline staff was too busy to go get one. They further allege

that although they asked to speak with a supervisor, M s . Fenton

told them that the supervisor was not available. According to

4 the Plaintiffs, M s . Fenton eventually gave them their boarding

passes and asked them to “please go on.”

The Prices walked slowly away from the check-in counter

because of M r . Price’s knee condition. They were headed toward

U.S. Customs, which was necessary in order for them to board

their flight to Boston. The area through which the Prices were

walking was very crowded with passengers, many of whom were

moving quickly past the Prices pushing luggage trolleys. M r .

Price heard a woman behind him complaining that he was walking

too slow and telling another person to go around him.

Mr. Price alleges that as he was walking down a ramp, he

became concerned for his safety and tried to move to an area away

from the crowd. An unknown pedestrian traveler, who was pushing

a luggage trolley, struck M r . Price with the trolley. The

trolley was stacked very high with luggage and the person pushing

it did not have a clear unobstructed view in front of him.

After he was hit by the trolley, M r . Price fell to the

floor. He was picked up off the floor by persons who M r . Price

believes were airport security employees and helped into a

wheelchair. M r . Price suffered injuries from this fall.

The Prices filed this lawsuit on May 1 , 2001. M r . Price

5 claims that the Defendants are liable in negligence for

proximately causing the injuries that he sustained during his

flight on May 2 7 , 2000, and in the Vancouver Airport on May 2 8 ,

2000. Mrs. Price asserts a loss of consortium claim.

During discovery, the Defendants propounded written

interrogatories to the Plaintiffs and took M r . Price’s

deposition. In response to the Defendants’ inquiries regarding

the fault that M r . Price attributed to the Defendants pertaining

to the accident in the airport, M r . Price alleged that Canadian

Airlines was responsible for causing that accident because its

employee refused to provide him a wheelchair.

To support their claims, the Plaintiffs took the depositions

of M s . Fenton and Lilly I p , a Canadian Airlines flight attendant.

M s . Fenton testified that the area of the airport where M r . Price

was injured was neither owned nor controlled by Canadian

Airlines. She further testified that it is likely that people

with luggage trolleys would be in that area. M s . Ip testified

that the Vancouver Airport is busy, that she has noticed persons

pushing luggage trolleys stacked up high, and that in such

instances it would be difficult for the person pushing the

trolley to see the people in front of him or her. M s . Ip further

6 testified that people often push the luggage trolleys quickly and

that they can be dangerous.

Discussion

I. Elements of a Negligence Claim

In order to recover damages on a negligence claim under New

Hampshire law, the plaintiff must show that “there exists a duty,

whose breach by the defendant causes the injury for which the

plaintiff seeks to recover.” Simpson v . Calivas,

, 4 ,

1 8 , 321 (1994); see also Goodwin v . James,

,

0 4 , 507 (1991) (same). Accordingly, a

plaintiff must establish each of the following elements in order

to prove his claim: “(1) the defendant owed the plaintiff a duty,

(2) the defendant breached the duty, and (3) as a result of the

breach, the plaintiff suffered injuries.” Gilbert v . Essex

Group, Inc.,

(D.N.H. 1993).

II. Duty Principles

An accepted maxim in negligence law is that all persons

“have a duty to exercise reasonable care not to subject others to

an unreasonable risk of harm.” Millis v . Fouts,

,

1 , 84 (1999) (quoting Walls v . Oxford Mgmt. Co.,

Inc.,

,

(1993)). Another

7 well-recognized principle of negligence law, however, is that

“[u]nder common law, inaction rarely gives rise to liability

unless some special duty of care exists.” Hasenfus v .

LaJeunesse,

8 , 71 (1st Cir. 1999)); see also

Restatement (Second) of Torts § 314 (1965) (“The fact that the

actor realizes or should realize that action on his part is

necessary for another’s aid or protection does not of itself

impose upon him a duty to take such action.”). Therefore, the

determination that a duty of care exists under common law is

ordinarily founded either upon a party’s actions, or upon a

special relationship that exists between the parties. Walls,

,

.

Whether the plaintiff alleges that a duty exists based on a

party’s actions or on the existence of a special relationship,

the foreseeability of the risk of harm to the plaintiff can act

as a limitation on the defendant’s liability.

,

; see also Manchenton v . Auto Leasing Corp.,

, 3 0 4 ,

0 8 , 213 (1992) (the concepts of duty and

foreseeability are inextricably bound together). A defendant

will generally not be held liable for negligence “if he could not

reasonably foresee that his conduct would result in an injury or

8 if his conduct was reasonable in light of what he could

anticipate.” Goodwin,

,

. The New

Hampshire Supreme Court has stated repeatedly that “[n]ot every

risk that might be foreseen gives rise to a duty to avoid a

course of conduct; a duty arises because the likelihood and

magnitude of the risk perceived is such that the conduct is

unreasonably dangerous.” Manchenton,

,

; see also Thibeault v . Campbell,

9 8 , 7 0 1 ,

1 2 , 214 (1993) (same); Millis,

,

1 , 84 (1999) (same).

The determination of whether a duty exists in a particular

case is a question of law to be determined by the trial court.

Sintros v . Hamon,

7 8 , 4 8 0 ,

(2002);

Millis,

4 8 ,

4 ; Walls,

,

. A finding that a duty exists rests “on a

judicial determination that the social importance of protecting

the plaintiff’s interest outweighs the importance of immunizing

the defendant from extended liability.” Walls,

5 7 ,

633 N.H. at 105 (quoting Libbey v . Hampton Water Works Co.,

0 0 , 5 0 2 ,

3 4 , 435 (1978)).

With these duty principles in mind, I consider whether the

9 Defendants owed M r . Price a duty to conform to a standard of

conduct in order to prevent the accidents that occurred on the

Canadian Airlines flight and in the Vancouver Airport.

III. The Food Cart Accident

Since the Plaintiffs’ theory of liability pertaining to the

accident in the airport stems from the injury he sustained the

previous day on a Canadian Airlines flight, it is necessary to

discuss the accident on the airplane first. The Plaintiffs

allege that on May 2 7 , 2000 a Canadian Airlines employee struck

Mr. Price’s right knee with a food cart while M r . Price was a

passenger on a Canadian Airlines airplane causing injury to M r .

Price’s knee. As a common carrier, Canadian Airlines owed its

passengers a duty to use a high degree of care for their safety,

including while moving food carts throughout the plane. See

e.g., Beaudet v . Boston & Maine R.R.,

, 5 ,

5 ,

66 (1957) (“A common carrier of passengers for hire must use

great caution to protect them consistent with the practical

operation of the business.”). There are no facts before me that

show either that M r . Price, or any other passenger on the plane,

took any action that caused the food cart to strike M r . Price’s

knee. Therefore, the Plaintiffs have sufficiently alleged facts

10 that could support a finding that the food cart accident was the

result of a breach of the duty owed by Canadian Airlines to use

due care when moving a food cart about the airplane.

The facts further support a finding that the injury that M r .

Price sustained in the food cart accident limited his mobility to

such an extent that he needed assistance moving about after his

flight from Hong Kong to Vancouver landed. Plaintiffs allege

that Canadian Airlines provided him a wheelchair for that

purpose. The Plaintiffs further allege, and the Defendants do

not dispute, that M r . Price’s physical condition was still

impaired due to the effects of the knee injury that he suffered

on May 2 7 , 2000 when he returned to the Vancouver Airport to

catch his flight to Boston on May 2 8 , 2000.

IV. The Airport Accident

Defendants argue that, as a matter of law, they may not be

held liable for the injuries that M r . Price suffered in the

Vancouver Airport on May 2 8 , 2000 because those injuries were

caused by the negligence of an unknown pedestrian traveler.

Defendants argue that Canadian Airlines had no duty to protect

Mr. Price from harm caused by a third party, particularly in an

area of the airport that they did not control.

11 The Prices assert that Canadian Airlines owed M r . Price a

duty of care under the facts of this case for three reasons.

First, Canadian Airlines had a duty to protect M r . Price from

harm arising from the special relationship between the Prices and

Canadian Airlines as passenger/common carrier. Second, Canadian

Airlines owed M r . Price a duty under general negligence

principles because the negligent conduct of a Canadian Airlines

employee caused the injury that required the use of a wheelchair.

And third, Canadian Airlines had a general duty under New

Hampshire law to protect disabled persons. I consider the merits

of these arguments next.

A. Duty Arising From Special Relationship

The Restatement (Second) of Torts, § 314A provides that:

(1) A common carrier is under a duty to its passengers to take reasonable action

(a) to protect them against unreasonable risk of physical harm, and

(b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.

Restatement (Second) of Torts, § 314A (1965). The American Law

Institute’s comments on § 314A discuss the extent of the duty

arising from a special relationship such as the relationship

12 between a common carrier and a passenger. The comments provide

in relevant part that:

In the case of an ill or injured person, [the carrier] will seldom be required to do more than give such first aid as he reasonably can, and take reasonable steps to turn the sick man over to a physician, or to those who will look after him and see that medical assistance is obtained.

Restatement (Second) of Torts, § 314A, cmt. f. The comments

further indicate that “[a] carrier is under no duty to one who

has left the vehicle and ceased to be a passenger.” Id., § 314A,

cmt. c.

Here, the facts show that after M r . Price’s right knee was

struck by a food cart, a Canadian Airlines flight attendant moved

him to a more convenient seat, provided him an ice pack and gave

him aspirin. The facts further show that after the Hong Kong to

Vancouver flight landed, Canadian Airlines provided M r . Price a

wheelchair because he was having difficulty walking. There are

no facts in the record that show that M r . Price required any

additional assistance immediately after the food cart accident.

From all that appears from the record, the Plaintiffs left

Canadian Airlines’ airplane, and the Vancouver Airport, on May

2 7 , 2000 without further incident. Applying the law as set forth

in Comment c. to § 314A of the Restatement, Canadian Airlines’

13 duty as a common carrier to assist M r . Price ended after M r .

Price was safely off the airplane and it was apparent that he did

not immediately require further medical attention for his knee

injury.

In support of their contention that Canadian Airlines owed

Mr. Price a duty to assist and protect him in moving through the

airport on May 2 8 , 2000, Plaintiffs cite another comment to §

314A, which provides in relevant part that: “[t]he duty to

protect the other against unreasonable risk of harm extends to

risks arising . . . from the acts of third persons, whether they

be innocent, negligent, intentional, or even criminal.”

Restatement (Second) of Torts § 314A, cmt. d. This comment may

not be taken in isolation; it must be read with the limitation on

a common carrier’s duty to a passenger who has left the vehicle.

Id. at cmt. c. In this case, at the time of M r . Price’s accident

in the airport, he was not a passenger on a Canadian Airlines

airplane and had not been since the previous day. Therefore,

Canadian Airlines’ duty as a common carrier does not extend to

the incident in the airport.

Plaintiffs’ argument that Canadian Airlines owed M r . Price a

duty of care because he was in “the boarding process” at the time

14 of the airport accident is unpersuasive. In Beaudet, a case upon

which the Plaintiffs rely, the plaintiff alleged that the

defendant was negligent after the plaintiff suffered injuries

while descending the steps of a railroad car.

,

8 . The facts of the instant case are distinguishable.

Here, the Plaintiffs allege that they were walking towards U.S.

Customs at the time of the accident. M r . Price was not at an

airport gate attempting to get onto a Canadian Airline’s airplane

or in another area controlled by Canadian Airlines. I find that

the Plaintiffs’ argument that Canadian Airlines owed M r . Price a

duty, arising from the special relationship between a passenger

and common carrier, to provide him a wheelchair to prevent an

accident anywhere in the airport lacks merit.

B. Duty Arising From Canadian Airlines’ Actions

Plaintiffs assert that M r . Price’s right knee was still in

such an impaired condition on May 2 8 , 2000 that his mobility was

limited as he tried to move through the Vancouver Airport.

Despite being informed of M r . Price’s impaired physical

condition, and the accident on the preceding day that caused i t ,

M s . Fenton, a Canadian Airlines employee, neither obtained a

wheelchair for M r . Price, nor provided him any other assistance

15 to aid him in moving through the airport so that he could board

his flight from Vancouver to Boston.

The Plaintiffs argue that under the facts of this case,

Canadian Airlines owed M r . Price a duty to protect him in the

airport because the negligence of a Canadian Airlines employee

caused his impairment. The Plaintiffs rely on a statement of the

law set forth in § 322 of the Restatement (Second) of Torts.

Section 322 provides that:

If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent further harm.

There are no facts in the record, however, upon which a

reasonable jury could conclude that the Defendants left M r . Price

helpless and in danger of further harm after the food cart

accident. To the contrary, during the time when the airline had

a duty to assist M r . Price, Canadian Airlines provided him with

all the assistance he required. The injury that M r . Price

received in the airport was remote in time and place from the

negligent conduct of Canadian Airlines’ flight attendant. The

Plaintiffs have not provided any support for their contention

that Canadian Airlines’ duty to render assistance extended into

16 the following day when M r . Price sought to resume his travels.

See Marshall v . Nugent,

0 4 , 612 (1st Cir. 1955)

(finding that if the risks to which a defendant has subjected a

plaintiff are entirely over and the situation has become

stabilized, whatever subsequent risks that the plaintiff might

encounter when he resumes his journeys would not be proximately

caused by the defendant because such risks are inseparable from

traveling at a l l ) .

The Plaintiffs allege that the Defendants bear continuing

liability in negligence for the injuries M r . Price sustained in

the airport under the principle that a defendant may be held

liable for injuries that directly resulted from the plaintiff’s

impaired physical condition in the first accident. Although the

Plaintiffs do not cite i t , § 460 of the Restatement provides

that:

If the negligent actor is liable for an injury which impairs the physical condition of another’s body, the actor is also liable for harm sustained in a subsequent accident which would not have occurred had the other’s condition not been impaired, and which is a normal consequence of such impairment.

Restatement (Second) of Torts, § 460. New Hampshire law is in

accord on this point. See Armstrong v . Bergeron,

5 ,

8 6 ,

(1962) (“As a general rule if a second

17 injury or an aggravation of a prior one is considered to be a

direct consequence or a natural result of the original injury,

the original wrongdoer is held liable for the entire damage.”).

The drafters of the Restatement left open the possibility

that an original tortfeasor could incur liability for injuries

sustained in a second accident even if the later harm resulted

from the subsequent negligence of a third party. See Caveat on

Restatement (Second) of Torts § 460 (“The Institute expresses no

opinion as to whether the actor whose negligence has weakened the

physical condition of another’s body is or is not also liable for

later harm resulting from the subsequent negligence of a third

person.”). The Court finds, however, that this possible

extension of liability is not available under New Hampshire law.

In

the plaintiff was struck in the rear by

defendant’s car sustaining injuries to her neck and back.

Several months later, the plaintiff was rear-ended by another

negligent motorist aggravating the injuries that the plaintiff

received in the first accident. The plaintiff claimed that the

defendant was liable for the aggravation caused by the second

accident. After a trial resulted in a jury verdict in the

plaintiff’s favor, the defendant appealed and the New Hampshire

18 Supreme Court reversed. The court held that: “if a second injury

or an aggravation of a previous injury is attributable to a

distinct intervening cause without which it would not have

happened, the wrongdoer is held to be liable for the original

injury only.” Armstrong,

6 ,

. In

Armstrong, the original tortfeasor was found to be not liable for

the aggravation of the plaintiff’s neck and head injuries

sustained as a result of a distinct intervening cause -- the

second accident.

at 8 7 ,

; see also

Annotation, Intervening Conduct of Third Person, 57A Am. Jur. 2d

Negligence § 643 (citing Armstrong for the proposition that “a

negligent actor will not be liable for the aggravation of a

plaintiff’s injuries resulting from a second accident caused by

the negligence of a third party, where the aggravation was

attributable to a distinct intervening cause, breaking the causal

chain of connection.”); Annotation, Proximate Cause; Liability of

Tortfeasor for Injured Person’s Subsequent Injury or Reinjury,

§ 2[a] (“the courts uniformly recognize that a

tortfeasor whose negligence has caused injury to another is also

liable for any subsequent injury or reinjury that is the

proximate result of the original injury except where the

19 subsequent injury or reinjury was caused . . . by an independent

or intervening act of a third person”). The Court concludes,

based on the reasoning and holding in Armstrong, as well as the

other authorities cited above, that the Defendants may not be

held liable, as a matter of law, for the injuries negligently

caused by the unknown pedestrian traveler who struck M r . Price

with a luggage trolley in the airport. Therefore, the Court

finds that the Plaintiffs have not shown that the Defendants may

be held liable in negligence for the injuries that M r . Price

sustained in the second accident based solely on having caused

the impairment to M r . Price’s knee in the first accident.

C. Duty to Assist Disabled Persons

Plaintiffs appear to argue that the Defendants breached a

general duty under New Hampshire law to protect disabled persons

by failing to provide M r . Price a wheelchair. See Pls.’ Mem. at

10 (citing provisions of New Hampshire statutes that apply to

disabled persons in the contexts of parking privileges (RSA

265:74), architectural barrier-free design (RSA 275-C:14) and

special education (RSA 186-C)). Defendants contend that even if

M s . Fenton refused to obtain a wheelchair for M r . Price, which

the Defendants dispute, the Defendants would not be liable in

20 negligence under the facts of this case. Defendants argue that

the purpose of providing a person a wheelchair is to facilitate

movement in a comfortable and convenient manner, and not to

prevent collisions with negligent third parties. Thus, they

argue, the failure to provide M r . Price a wheelchair cannot be

considered the cause of M r . Price’s accident in the airport.

The facts in the record show that the airport accident was

caused by the negligence of a pedestrian traveler who struck M r .

Price from the rear with a luggage trolley. Although the

Plaintiffs claim that the Defendants are responsible for causing

that accident, the Plaintiffs’ have not shown that the

Defendants’ failure to provide M r . Price a wheelchair presented a

foreseeable and unreasonable risk of the harm alleged to have

occurred in this case. The law did not impose a duty on the

Defendants to anticipate the careless conduct of another. See

Piatek v . Swindell,

0 2 , 151 A . 2 6 2 , 264 (1930) (a

defendant may not be held liable in negligence for assuming that

another will do his duty when there is no occasion to assume

otherwise); Beaudet,

,

(finding that

a common carrier is not an insurer of the safety of its

passengers; its liability is based on negligence). Therefore,

21 even if the Defendants were aware that the airport was crowded,

and could have possibly foreseen that pedestrian travelers with

luggage trolleys posed a general threat to other travelers, the

Plaintiffs have not shown that the Defendants’ failure to provide

Mr. Price a wheelchair presented an unreasonable risk of harm.

Cf. Manchenton,

,

(finding

that although the theft of the defendant’s car and a thief’s

negligent driving of the stolen car were foreseeable events, the

defendant did not owe the plaintiff a duty to guard against the

auto theft because it did not present a reasonably foreseeable

danger to the plaintiff); Thibeault, 136 N.H. at 7 0 1 , 622 A.2d at

214 (finding that the injures that occurred in the case were the

immediate result of a collision caused by the negligence of

another and not the failure to wear a seat belt, which did not,

by itself, create an unreasonable risk of injury); Millis,

,

(finding that even if the defendant

landlord could foresee that a rotted fence might present a

general risk of harm to others, he had no reason to believe that

allowing the plaintiff to remove the fence was unreasonably

dangerous or would result in the injury that the plaintiff

suffered). The New Hampshire Supreme Court’s admonition that

22 “[n]ot every risk that might be foreseen gives rise to a duty to

avoid a course of conduct,” applies in the instant case.

Manchenton,

,

.

In sum, the Plaintiffs had the burden of setting forth facts

that show that the defendant had a duty to conform to a standard

of conduct. See Restatement (Second) of Torts § 328A (1965).

The Plaintiffs failed to meet their burden with regard to the

Defendants’ alleged liability for the airport accident.

Accordingly, I find that the Defendants are entitled to judgment

as a matter of law with respect to that aspect of the negligence

claim asserted in this action.

Conclusion

For the reasons set forth above, the Defendants’ motion for

partial summary judgment (document n o . 1 7 ) , pertaining to whether

the Defendants may be held liable for M r . Price’s accident in the

Vancouver Airport on May 2 8 , 2000, is granted.

SO ORDERED.

/ s / James R. Muirhead James R. Muirhead United States Magistrate Judge

Date: April 1 1 , 2006

cc: William E . Aivalikles, Esq. Jeffrey B . Osburn, Esq.

23