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VARGAS v. AIR FRANCE FREIGHTER

March 24, 2003

OMAR VARGAS, PLAINTIFF,
v.
AIR FRANCE FREIGHTER AND CONTINENTAL AIRLINES, DEFENDANTS.



The opinion of the court was delivered by: Suzanne B. Conlon, United States District Judge

MEMORANDUM OPINION AND ORDER

Omar Vargas ("Vargas") initially filed this action in the Circuit Court of Cook County against Air France, incorrectly identified as Air France Freighter ("Air France") (Count I), and Continental Airlines ("Continental") (Count II). Vargas alleged negligence for personal injuries he sustained while servicing an Air France aircraft at O'Hare International Airport on behalf of his eniployer, Signature Flight Support Corporation ("Signature"). Air France removed this action based on the Foreign Sovereign Immunity Act ("FSIA"), 28 U.S.C. § 1602 et seq. Air France moves for summary judgment pursuant to Fed.R.Civ.P. 56. Signature moves for leave to file its appearance and petition to intervene instanter.

BACKGROUND

I. Local Rule 56.1

Local Rule 56.1 requires litigants to ibilow a detailed procedure in filing and responding to summary judgment motions. In response to a motion for summary judgment, Local Rule 56.1 requires the non-moving party to submit a response "to each numbered paragraph in the moving party's statement [of material facts], including, in the case of any disagreement, specific re f'creaccs to the affidavits, parts of the record, and other supporting materials relied upon." Local Rule 56.1(b)(3)(A). "If tidditional material facts are submitted bythe opposing party. . ., the moving party may submit a concise reply in the form prescribed in tWit section For a. response." Id. "All material fZets set forth ir the statement required of [either] party will he deemed to be admitted unless controverted by the statement of the opposing party," Local Rule 56.1(b)(3)(B). Vargas failed to respond to Air France's statement of facts. Although Air France points out on reply the deficiencies in Vargas' submissions, it fails to respond to Vargas' additional facts in the form required by Local Rule 56.1(b)(3)(A). Therefore, the parties' facts are deemed admitted to the extent they are properly supported by the record. Oates v. Discovery Zone, 116 F.3d 1161, 1167 (7th Cir. 1997).

II Facts

The following facts are undisputed. Signature provides ground handhng services, including aircraft fueling, to Air Prance pursuant to a written agreement. Vargas worked for Signature as an aircraft fueler.

Sometime after 6:00 p.nt on January 3, 2001, Vargas began fueling a 747 Boeing aircraft owned by Air France. While Vargiw was fueling the aircraft, a stair truck pulled "up and attached to the cockpit. After Vargas finished fueling the aircraft, he glanced around his immediate area for an Air Prance mechanic to check the fuel gauge in the cockpit to verify that the tanks were full. When VarZas did not see an Air France mechanic in his immediate area, he proceeded up the stair truck. On the platform at the top of the stairs, Vargas observed two plastic garbage bags. At that time, unidentified cleaning personnel, including individuals wearing Contimental jackets, were throwing ice and. water out the cockpit door. Vargas does not know who employed the cleaning personnel. Response at 2.

Vargas entered the cockpit to check the fuel gauge. By doing so, Vurgas violated Signature's rules prohibiting him from entering an aircraft. Vargas eiaims he was never told during his training period that he should not enter an aircraft. After checking the fuel gauge, Vargas used the restroom before exiting the aircraft. Vargas exited the aircraft by stepping onto the platform of the stair truck. As he was about to step down on the first riser, Vargas slipped and fell down the stairs. I-Ic did not notice any Ibreign substance either on the platform or on tbe first step beibre he fell.

After he fell, Vargas noticed a thick oozy fluid on the stairs as well as his hands and clothes. An unidentified Contimental employee attempted to assist him to his feet by picking him up.*fn1 Vargas Dep. at 129, 203-04. Vargas told him to stop because he was in pain. When unidentified individuals moved the garbage bags a short time later, Vargas noticed they were leaking fluid. Vargas sufibred two herniated discs in his back at L4 and L5 due to the fall.

Air France does not own any stair trucks. Air France never cleaned, repaired or exercised any control over the stair truck involved in Vargas' accident.

DISCUSSION

I. Standard of Review

Summary judgment is appropriate when the moving papers and affidavits show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R. Civ. p. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once a moving party has met its burden, the nowmoving party must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Silk v. City of Chicago, 194 F.3d 788. 798 (7th Cir. 1999). A genuine issue of material fact exists when "the ...


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