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Abbott v. United States

United States District Court, E.D. Louisiana

March 28, 2018


         SECTION: “H” (4)



         Before the Court are Defendant's Motion to Dismiss for Lack of Jurisdiction (Doc. 30) and Motion for Summary Judgment (Doc. 29). For the following reasons, the motions are GRANTED.


         This survival action arises from injuries that Elmer Abbott sustained at a Transportation Security Administration (“TSA”) checkpoint. The following facts are undisputed.[1] On February 26, 2015, Elmer was travelling through the Louis Armstrong New Orleans International Airport on his way to Virginia. Elmer, 87 years old, was travelling with his wife Dorthy Abbott, his daughter Sherrie Abbott Flowers, his granddaughter Megan Flowers Mawyer, and Megan's husband Robert Mawyer. As Elmer proceeded through the TSA checkpoint he was seated in a Drive Medical Duet Transport Chair Rollator, model number 795BU (“Rollator”). The Rollator includes a fabric pouch located under the seat that may be accessed by lifting the Rollator's seat or unfastening one of the three metal snaps located on the Rollator's rear-facing side that attach the pouch to the metal frame of the Rollator.

         TSA employee Emma Ryks screened Elmer and his Rollator. Ryks intended to screen the Rollator's under-seat pouch by unfastening one of the snaps, meaning that Elmer would not need to exit the Rollator. Ryks informed Elmer that she was going to screen the under-seat pouch before she did so. Ryks positioned herself behind Elmer and crouched down to face the Rollator's seat. Shortly after, Elmer fell out of the Rollator, striking the ground and sustaining injuries.

         Elmer died in 2016 of causes unrelated to his injuries at the New Orleans Airport. Plaintiff Dorthy Abbott-Elmer's widow-and Plaintiffs Michael Abbott, Daniel Abbott, Lynnette West, Clinton Abbot, and Sherrie Flowers- Elmer's children-bring this survival action against Defendant United States of America for the injuries that Elmer sustained.

         Defendant moves to dismiss any claims that Plaintiffs assert for their own damages because Plaintiffs failed to exhaust their administrative remedies before filing suit. Plaintiffs do not oppose the Motion to Dismiss, conceding that they bring only a survival action to recover for Elmer's damages on his behalf. Accordingly, Defendant's Motion to Dismiss is GRANTED.

         Defendant also moves for summary judgment, arguing that Plaintiffs can produce no evidence that Defendant breached its duty to Elmer or caused Elmer to fall. Plaintiffs oppose the Motion for Summary Judgment.


         Summary judgment is appropriate if “the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations. . ., admissions, interrogatory answers, or other materials” “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[2] A genuine issue of fact exists only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”[3] In a bench trial, such as this, “a judge [also] has the limited discretion to decide that the same evidence, presented to him or her as trier of fact in a plenary trial, could not possibly lead to a different result.”[4]

         In determining whether the movant is entitled to summary judgment, the Court views facts in the light most favorable to the non-movant and draws all reasonable inferences in his favor.[5] “If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial.”[6] Summary judgment is appropriate if the non-movant “fails to make a showing sufficient to establish the existence of an element essential to that party's case.”[7] “In response to a properly supported motion for summary judgment, the nonmovant must identify specific evidence in the record and articulate the manner in which that evidence supports that party's claim, and such evidence must be sufficient to sustain a finding in favor of the nonmovant on all issues as to which the nonmovant would bear the burden of proof at trial.”[8] “Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.”[9] Nor does the Court, “in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts.”[10] Additionally, “[t]he mere argued existence of a factual dispute will not defeat an otherwise properly supported motion.”[11]


         Plaintiffs have sued Defendant United States of America under the Federal Tort Claims Act for events that took place in the Eastern District of Louisiana.[12] This Court therefore applies Louisiana law to determine liability.[13] Louisiana employs the duty-risk analysis in tort cases, under which Plaintiffs bear the burden to prove that:

(1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) the defendant's substandard conduct was a cause in fact of the plaintiff's injuries (the cause-in-fact element); (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element); and (5) the actual damages (the damages element).[14]

         Both Louisiana courts and federal courts applying Louisiana law routinely grant motions for summary judgment dismissing tort claims when plaintiffs cannot produce evidence of all five elements.[15]

         Defendant argues that Plaintiffs have no evidence that Defendant either breached its duty to Elmer or that any breach was the cause-in-fact of Elmer's injuries. There is no dispute that none of Plaintiffs' witnesses have personal knowledge of what caused Elmer to fall.[16] TSA agent Ryks testified that Elmer fell out of the Rollator before Ryks got a chance to open or screen the pouch.[17]Ryks unequivocally testifies that she did not lift up the Rollator's seat or push Elmer out of the Rollator.[18] In a statement she wrote shortly after the fall, Rykes says that she had not even started to undo the pouch snap when Elmer fell out of the Rollator.[19] Surveillance video of the TSA checkpoint captured Elmer's fall.[20] The video shows Ryks crouching down behind Elmer seated in the Rollator. Elmer appears to turn his head back toward Ryks and make a hand gesture as if they were speaking. Elmer then places is right hand on the Rollator arm rest and appears to lean forward before the Rollator tips over in the forward direction, spilling him out.[21] The Court does not see any evidence in the video that ...

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