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Mukarker v. City of Philadelphia

United States District Court, D. Massachusetts

March 2, 2017





         Plaintiff Nicola Mukarker fell and injured his shoulder while riding a moving walkway between terminals during a layover at Philadelphia International Airport. Plaintiff filed this diversity action against Otis Elevator Company based on negligent maintenance (Count I)[1] and strict product liability (Count II). Defendant now moves for summary judgment on both counts. On Count I, Defendant argues that the negligence claim is barred by Pennsylvania's two-year statute of limitations for tort claims. On Count II, Defendant argues that it cannot be strictly liable because it did not design, manufacture, sell, distribute, or install the moving walkway.

         After hearing argument, the Court ALLOWS the Motion for Summary Judgment on Count I on the ground it is time-barred. The Court DENIES summary judgment on Count II without prejudice to renewal after limited discovery.


         When all reasonable inferences are drawn in Plaintiff's favor, the following facts are treated as undisputed except where stated.

         Plaintiff is a 67-year old Massachusetts resident. On January 15, 2013, Plaintiff had a layover at Philadelphia International Airport while returning to Massachusetts from the Dominican Republic. Plaintiff planned, booked, and paid for his trip in Massachusetts. When attempting to exit a moving walkway (designated as “C17”) at the airport, Plaintiff fell over a stuck luggage cart that blocked the walkway exit. As a result, Plaintiff suffered a “traumatic massive rotator cuff tendon tear.” Docket No. 41, Ex. A, ¶ 8. Plaintiff received medical care, paid for by his state insurer: MassHealth.

         Defendant is a New Jersey corporation with its principal place of business in Connecticut. Defendant regularly conducts business in both Massachusetts and Pennsylvania and maintains a registered agent in both states. Defendant was responsible for maintenance of the moving walkway when Plaintiff tripped. The City of Philadelphia Procurement Department solicited bids for the facility maintenance contract that governs maintenance of the moving walkway in question. Docket No. 33, Ex. F. Defendant has submitted an affidavit that it did not manufacture, design, distribute, sell, or install the moving walkway. Docket No. 33, Ex. E, ¶ 5. Plaintiff seeks discovery on this assertion. Docket No. 41-3.

         Plaintiff filed suit in Middlesex Superior Court on January 13, 2016. Docket No. 1, Ex. A. The case was removed to this Court on February 22, 2016. Docket No. 1.


         Summary judgment is appropriate when there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). To succeed on a motion for summary judgment, the moving party must demonstrate that there is an “absence of evidence supporting the non-moving party's case.” Sands v. Ridefilm Corp., 212 F.3d 657, 661 (1st Cir. 2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The burden then shifts to the non-moving party to set forth specific facts showing that there is a genuine issue of material fact for trial. Quinones v. Houser Buick, 436 F.3d 284, 289 (1st Cir. 2006). A genuine issue exists where the evidence is “sufficiently open-ended to permit a rational factfinder to resolve the issue in favor of either side.” Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995). A material fact is “one that has the potential of affecting the outcome of the case.” Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004). In its review of the evidence, the Court must examine the facts in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. Sands, 212 F.3d at 661. Ultimately, the Court is required to “determine if there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. (quotation marks omitted).

         I. Statute of Limitations on Negligence Claim

         This motion presents a choice of law question: which state's statute of limitations applies to Plaintiff's negligence claim, Massachusetts or Pennsylvania? Because this Court is sitting in diversity, it must apply the forum state's choice of law analysis. See Reicher v. Berkshire Life Ins. Co. of Am., 360 F.3d 1, 4 (1st Cir. 2004). The forum state, Massachusetts, uses the choice of law analysis from the Restatement (Second) of Conflict of Laws. See Nierman v. Hyatt Corp., 808 N.E.2d 290, 292 (Mass. 2004) (citing Restatement (Second) of Conflict of Laws § 142 (Supp. 1989)). The Restatement sets forth a two-pronged analysis:

Whether a claim will be maintained against the defense of the statute of limitations is determined under the principles stated in ยง 6. In general, unless the exceptional ...

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