* burden, the non-moving 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 cvidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).

Lin Choice of Law

The court has jurisdiction under the FSIA. In FSIA actions, courts are divided as to whether
the forum state’s choice of law rules or federal common law governs. Compare Chuidian vy.
Phillipine Nat'l Bank, 976 F.2d 561, 364 (9th Cir. 1992)(‘“federal common law choice of Jaw rules
apply . .. not the choice of law rules of the forum state” to FSLA actions) with Barkanic v. General
Admin. of Civil Aviation of the People’s Republic of China, 923 ¥.2d 957, 959-61 (2d Cir.
1991)(“forum law provides the proper choice of law rules for FSJA cases”). Neither the Supreme
Court nor the Seventh Circuit has addressed this issue. Nevertheless, “before entangling itsclf in
messy issues of conflict of laws, a court ought to satisfy itself that there is actually a difference
between the relevant laws....” Barron v. Ford Motor Co, of Canada Lid, 965 F.2d 195, 197 (7th
Gir, 1992).

Roth parties rely exclusively on cases decided under Ilinois taw. Indeed, both Illinois and
federal law look to the Restatement (Second) of Conflict of Laws to decide choice of law questions
Ingersoll v. Klein, 46 NL2d 42, 262 N.E.2d 593 (1970)(adopting most significant relationship test
of the Restatement (Second) of Conflict of Laws); Schoenberg v. Exportadora de Sal, 8.A. de C.V.,
930 F.2d 777, 782 (9th Cir. 1991)@Federal common law allows the approach of the Restatement

(Second) of Conflict of Laws”). “hn practice, this means that ‘the law of the place of injury controls


614 N.L2d 135, 139 (Ast Dist. 1993). Liability will not be imposed where the injury is not caused
by a physical defect in the adjacent property, but rather is the result of an independent factor. /d. at
218, 614 N.E.2d at 139. Air France did not own or exercise any control over the stair truck
providing access to its aircrafl. More importantly, Vargas docs not claim his injury was caused by
the stair truck, but by a liquid substance deposited on the stairs by an unknown cleaning crew. PI.
Facts at {ff 15-16, Vargas has failed to offer evidence that Air France owed him a duty of care.
{V. Negligence Claim against Continental

The court may relinquish jurisdiction over state law claims when all federal claims are
dismissed, 28 U.S.C. § 1367(c)(3). According to the general rule, “when all federal claims are
dismissed before trial, the pendent claims should be left to the state courts.” Wright v, Associated
Ins. Cos., Inc., 29 F.3d 1244, 1252 (7th Cir. 1994), Although exceptions to the general rule exist,
nonc apply bere. Id. at 1251-52. Continental did not join in Air France’s summary judgment motion
or file its own. Therefore, the court declines to exercise supplemental jurisdiction over Vargas’
remaining state law claim against Continental.

CONCLUSION

Air France is entitled to judgment as a matter of law on Vargas’ negligence claim. Vargas’

negligence claim against Continental is remanded to the Circuit Court of Cook County, Hlinois.

Signatures” motion for leave to file an appearance and petition to intervene ate moot.

March 24, 2003 ENTER:

GQ Ma is Conlon —

United States District Judge


icc 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, Vargas violated Signaturc’s
rules prohibiting him from entering an aircraft. Vargas claims 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. He did not
notice any forcign substance either on the platform or on the first step before he fell.

After he (ell, Vargas noticed a thick oozy fluid on the stairs as well as his hands and clothes.
An unidentified Continental employec attempted to assist him to his feet by picking him up.’ 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 suffered
(wo 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
1. 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); Celutex Corp, v. Catrett, 477 U.S. 317, 322 (1986). Once a moving party has met its

"Vargas originally identified this man as an Air France employee in passing. Vargas Dep.
74-75, When asked specifically about the man’s employment, Vargas unequivocally slated the
man worked for Continental. Vargas Dep. at 203.

3



. unless Illinois has a more significant relationship with the occurrence and with the parties.”
Fredrick v. Simmons Airlines, Inc., 144 F.3d 500, 504 (7th Cir. 1998), quoting Esser v. McIntyre,
169 Ul. 2d 292, 661 N.E. 2d 1138, 1141 (1996). Vargas was injured in Illinois. Therefore, Illinois
law applies.
UI. Negligence Claim against Air France

To prevail in a negligence action under Jflinois law, Vargas must prove Air France: (1) owed
him a duty of care; (2) breached that duty of care; and (3) the breach proximately caused his injury.
Binz v, Brandt Construction Co,, Ine., 30) ¥.3d 529, 532 (7th Cir. 2002), citing Expinozu y, Elgin,
Joliet & Eastern Ry, Co., 165 W.2d 107, 114, 649 N.E.2d 1323, 1326 (1995). Air France claims
Vargas cannot establish a duty or proximate cause. {n negligence actions, the issue of whether a duty
exists is a question for the court to decide while issues of breach and proximate cause are questions
of fact for the jury to resolve, “provided that there is a genuine issue of material fact regarding those
issues.” Mark Twain Mlinois Bank v. Clinton County, 302 Il. App. 3d 763, 766, 706 N.L.2d 94, 96
(5th Dist. 1999), The court need not reach the issue of proximate cause if Vargas cannot establish
a duty

Under Lllinois law, the same standards for determining the duties owed by landowners apply
to owners of personal property that may be entered. Basham v. Hunt, 332 {il. App. 3d 980, 992, 773
N,H.2d 1213, 1224 (1st Dist. 2002). The nature of the duty a landowner owes to an entrant to its
property depends upon whether the entrant is a trespasser, licensee or invitee. Reid v. Norfolk &
Western Railway Co., 157 F.3d 1106, 1110 (7th Cir. 1998), citing Miller v. General Motors Corp.,
207 Ill. App. 3d 148, 153-54, 565 N.E.2d 687, 690 (4th Dist. 1990), Based on the record before the

court, Vargas was a trespasser on Air France’s aircrafl. “A trespasser is one who enters upon the


United States District Court, Northern District of Min

Tamectavinved wise | Suzanne B.Conlon | Siig ue rar

CASE NUMBER 02 C5912 DATE 3/24/2003
CASE OMAR VARGAS vs. AIR FRANCE FREIGHTER, ct al.
TITLE

{In the following box (a) indicate the party filing the motion, e.g... plaintiff, defendant, 3rd party plaintiff, und (b) state bricfly the nature
of the motion being presented.)

MOTION:

DOCKET ENTRY:

ap) Qo Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) a) Answer brief to motion due__. Reply to answer brief due___

(4) Oo Ruling/Hearingon_ ____setfor_____at.

(5) Oo Status hearing[held/continued to] [set for/re-set for}on__ set for at
(6) o Pretrial conference[held/continued to] [set for/re-set for)on__—s_sset for at
(a) Oo Trialfset for/re-sct for}on at

(8) il [Bench/Jury trial] [[learing] held/continuedto at

(C)) go ‘This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

DOSRCP4(m) OLocal Rule 41.1 OFRCP4i(a)\(1) OO FRCP41(a)(2).

do) {Other docket entry] Air France’s motion for summary judgment [16-1] is granted as to Count I.
Count II against Continental Airlines is remanded to the Circuit Court of Cook County. Signature Plight
Support Corporation’s motion for leave to file appearance [20-1] and petition to intervene |20-2] are
denied as moot. ENTER MEMORANDUM OPINION AND ORDER.

uyueed (2, Colon

i spiedment
mb

(ql) @f [For further detail see order attached to the original minute order.

No nofices required, advised in open court,

0 .
No notices required, uber of mises

V | Notices mailed by judge’s staff.

{AR 25 208

Notified counsel by telephone, july dlocketed

Docketing to mail notices.

Mail AO 450 form.

240M

Copy to judge/magistrate judge

ares
courtroom C0 :S vd A? UN DU date mailed notice
cB deputy’s ow
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central Clerk's Office nang dpaty etn



premises of another with neither permission nor invitation and intrudes for some purpose of his own

or at his convenience or merely as an idler.” Basham, 332 Ill, App. 3d at 992, 773 N.E.2d at 1224.
Vargas entercd the Air France aircraft without permission. Vargas concedes that “only... Ait
France personnel and/or agents would be allowed to use the stair truck to gain access” to the aircraft,
Response at 4. Vargas does not claim he was an Air France agent. Nevertheless, Vargas used the
stair truck to check the fuel gauge inside the aircraft instead of waiting for or actively looking for an
Air France mechanic. According to Vargas, he took action hecause he did not want to be penalized
ifthe plane was late. Vargas Dep. at 35-36. Under these circumstances, Vargas must be considered
a trespasser when he entered Air France’s aircraft without authorization,

As a trespasser, Air France owed a duty to Vargas to refrain from wantonly or willfully
injuring him and to use reasonable care to avoid injury to him after he was discovered to be in peril.
Reid, 157 F.3d at 1110, citing Rodriguez v. Norfolk & Western Ry. Co,, 228 I. App. 3d 1024, 1038,
593 N.E.2d 597, 607 (1st Dist. 1992). The record does not reveal any evidence demonstrating that
Air France willfully or wantonly injured Vargas. Nor does Vargas present any evidence that any Air
France employee failed to use reasonable care to help him avoid injury. To the contrary, Vargas only
offers evidence that unidentified employees, who may have worked for Continental, were present
wround the time of his accident. Under these circumstances, Vargas’ negligence claim against Air
France fails as a matter of law.

Even if Vargas were authorized to enter the Ait France aircraft, his negligence claim fails on
the merits. Although a property owner has a duty to provide invitees a safe means of ingress and
egress to his premises, the duty does not extend to injuries that occur on adjacent property not under

the property owner’s control. Hanks v, Mount Prospect Park Dist., 244 [t. App. 3d 212, 217-218,


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
OMAR VARGAS, )
Plaintiff, ; No, 02 C 5912
v ; Suzanne B. Conlon, Judge
AIR FRANCE FREJGHTER and ;
CONTINENTAL AJRLINES, )

Defendants.

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 1), 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
employer, Signature Flight Support Corporation (“Signature”). Air France removed this action based
on the Foreign Sovereign {mmunity Act (“F'SIA”), 28 U.S.C. § 1602 ef 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 requites litigants to follow 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

1 os
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party’s statement [of material facts], including, in the case of any disagreement, specific references

to the affidavits, parts of the record, and other supporting materials relied upon.” Local Rute
56.1(b)(3)(A). “Tfadditional material facts are submitted by the opposing party . .., the moving party
may submit a concise reply in the form prescribed in that section for a response.” Jd. “All material
facts set forth in the statement required of [either] party will be deemed to be admitted unless
controverted by the statement of the opposing party.” Tocal 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 requited by Local
Rule 56.1(b)(3)(B). 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).

iE Facts

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

Sometime after 6:00 p.m. on January 3, 2001, Vargas began fucling a 747 Boeing aircraft
owned by Air France. While Vargas 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 France mechanic to check the fuel gauge in the cockpit to verify that the tanks were full. When
Vargas did not see an Air France mechanic in his immediate arca, 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 Continental jackets, were throwing