852 F. 2d 572 - Mulligan v. Eastern Airlines Inc

The Mulligans appeal from a summary judgment entered in favor of Eastern Airlines, Inc. (Eastern). The district court had jurisdiction pursuant to 28 U.S.C. Sec. 1332 and we have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm.

The Mulligans complain about alleged discovery abuse pertaining to questions asked of Mulligan's treating physician. We have reviewed the questions asked and agree with the district court that they were not improper discovery questions. Mulligan's motion for summary judgment based on these questions was properly denied.

The district court found no material fact in dispute and concluded that Eastern was entitled to judgment as a matter of law. The fall alone is insufficient to prove liability. Walker v. Montgomery Ward & Co., 20 Ariz.App. 255, 258, 511 P.2d 699, 702 (1973). The Mulligans must prove Eastern knew or should have known about the alleged foreign material on the stairs. Id.; see Preuss v. Sambo's of America, Inc., 130 Ariz. 288, 635 P.2d 1210, 1211-12 (1981). The undisputed facts show that the Mulligans did not meet their burden of proof.

They argue, however, that due to his consumption of alcohol, Eastern had a duty to assist Mulligan as he exited the aircraft. The district court properly concluded that no such duty could arise unless Eastern had notice of the alleged condition. Gallin v. Delta Air Lines, Inc., 106 Misc.2d 477, 434 N.Y.S.2d 316, 317-18 (1980). We agree with the district court that the alleged facts do not show the required notice.

The Mulligans were required to produce facts to show all the elements necessary to establish liability. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This they failed to do.

AFFIRMED.