                                                          NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            _____________

                                No. 19-1075
                               _____________

                FLORA LEONARD; KAREN VELAZQUEZ

                                      v.

   GOLDEN TOUCH TRANSPORTATION OF NEW YORK INC, a New York
  Corporation; UNITED AIR LINES INCORPORATED, a Delaware Corporation;
  THE PORT AUTHORITY OF NEW YORK & NEW JERSEY, a joint venture;
                       GATEWAY SECURITY INC.

  GOLDEN TOUCH TRANSPORTATION OF NEW YORK, INCORPORATED;
UNITED AIRLINES, INCORPORATED; THE PORT AUTHORITY OF NEW YORK
                AND NEW JERSEY; Third Party Plaintiffs

                                      v.

                KAREN VELAZQUEZ, Third Party Defendant

                               Flora Leonard,
                                         Appellant
                              ______________

               On Appeal from the United States District Court
                        for the District of New Jersey
                          (D.C. No. 2-15-cv-02084)
                   District Judge: Hon. William H. Walls
                              ______________

              Submitted Pursuant to Third Circuit L.A.R. 34.1(a):
                               March 27, 2020
                              ______________

          Before: JORDAN, RESTREPO, and FUENTES, Circuit Judges.

                            (Filed: April 23, 2020)
                                     _____________

                                      OPINION *
                                    ______________


RESTREPO, Circuit Judge.

      This is an appeal involving a personal injury claim arising from a slip and fall

accident at Newark Liberty International Airport. The U.S. District Court for the District

of New Jersey entered summary judgment for the appellees. We will affirm.

                                            I

      The following account is based on undisputed facts unless otherwise noted. Flora

Leonard is 79 years old and walks with a cane for support. She and her daughter, Karen

Velazquez, were traveling together on United Airlines from Norfolk, Virginia, to the

United Kingdom. Velazquez testified that she was accompanying her mother on this trip

“as an assistant person.” Aa-325. Leonard confirmed that she deferred to her daughter

for any necessary accommodations “because [Velazquez] knew” Leonard’s mobility

limitations. Aa-290. At the departing gate, Velazquez requested that her mother be

“flagged” for special assistance, Aa-325, believing that this would mean that a wheelchair

or “some way to get her from point A to point B” would be provided upon landing, Aa-

326. United complied.




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

                                            2
       The initial leg of their flight involved a transfer at Newark Airport, which is leased

to and operated by the Port Authority of New York and New Jersey. Upon arriving at

Newark, Velazquez and Leonard boarded an electric cart requested by Velazquez to

make their connecting flight. The cart was operated by either United or Gateway

Security. The cart driver dropped the two passengers off at the top of a ramp where

United staff directed or hurried them to board a shuttle operated by Golden Touch

Transportation. Neither Velazquez nor Leonard requested a wheelchair or any other

mobility assistance during their transfer at Newark.

       Velazquez boarded the shuttle first and did not return to assist Leonard or ask

anyone to help Leonard step onto the shuttle. When Leonard tried to board, she slipped

and fell on the shuttle’s step, which may have been between four and fourteen inches

high. Leonard suffered a large cut on her leg and started bleeding profusely. Velazquez

did not witness her mother’s fall but tried to help her after the accident. When Velazquez

tried to apply a tourniquet to her mother’s leg, she became covered in her blood. Leonard

underwent surgery and hospitalization in New Jersey as a result of this injury, and once

back in Norfolk, she developed injury-related infections resulting in two more

hospitalizations. Velazquez did not suffer physical injuries or seek medical or

psychological treatment in connection with this accident.

       Leonard and Velazquez sued United, Gateway Security, Golden Touch, and the

Port Authority, seeking compensation for Leonard’s personal injury and Velazquez’s

related emotional distress. Following discovery, the defendants moved for summary



                                             3
judgment, which the District Court granted. Only Leonard appealed, and did so only

with respect to United, Gateway Security, and Golden Touch. 1

                                              II

       We exercise plenary review over the District Court’s grant of summary judgment,

drawing all reasonable inferences in favor of the nonmoving party to determine whether

any issue of material fact precludes entering judgment as a matter of law. Mylan Inc. v.

SmithKline Beecham Corp., 723 F.3d 413, 418 (3d Cir. 2013). We may affirm summary

judgment on any grounds supported by the record. United States ex rel. Spay v. CVS

Caremark Corp., 875 F.3d 746, 753 (3d Cir. 2017).

                                             III

       To sustain a negligence action under New Jersey law, a plaintiff must demonstrate,

among others, that (i) the defendant owed a duty of care to the plaintiff, (ii) the defendant

breached that duty, and (iii) the breach was the proximate cause of the plaintiff’s injury.

Townsend v. Pierre, 110 A.3d 52, 61 (N.J. 2015). Accepting that the appellees are all

common carriers, “the duty imposed [on them] requires not only that the transportation

vehicle be kept safe, but that a safe means of ingress and egress be maintained for the use

of the passengers.” Buchner v. Erie R. Co., 111 A.2d 257, 258 (N.J. 1955). That

includes eliminating dangerous conditions on the common carriers’ property that

passengers use to enter and exit the transit vehicle. Id. at 288.



1
  The District Court exercised diversity jurisdiction under 28 U.S.C. § 1332. We have
jurisdiction under 28 U.S.C. §§ 1291 and 1294.

                                              4
       The District Court held that United did not owe a duty of care to Leonard, because

she was not on United’s property when she fell. It further held that, regardless of who

operated the electric cart, there was no authority for holding that a common carrier

breaches its duty of care by hurrying a disabled passenger. The court also found no

authority for the proposition that a higher step is itself a dangerous condition. Leonard

contests each of these conclusions and argues that there are material issues of fact that

preclude summary judgment. While we regret Leonard’s unfortunate accident, we see no

reason to disturb the District Court’s thoughtful decision.

       Leonard’s principal argument on appeal is that the result of the District Court’s

analysis would have been different if it had properly applied the heightened duty of care

owed by common carriers to passengers with noticeable mobility limitations, consistent

with Carter v. Pub. Serv. Coordinated Transp., 136 A.2d 15 (N.J. Super. Ct. App. Div.

1957). There, a pregnant woman traveling alone tripped and fell when attempting to

board a bus that may have stopped several inches from the curb. It was disputed whether

the bus operator realized that the woman was pregnant and that she would have trouble

boarding the bus. Carter, 136 A.2d at 17. Given that the woman was “obviously

pregnant”—“‘large’ in her ninth month of pregnancy”—the court held that it was proper

to ask a jury whether the operator knew or should have known that he needed to bring the

bus closer to the curb to allow her to board safely. Id. at 21. The court stated: “Where

the defendant through its employee has notice of the physical infirmity of one who is

about to board its vehicle, it owes her a duty and is chargeable with a greater degree of

attention than where a person is under no physical disability.” Id.

                                             5
       Leonard asserts that the appellees were on notice of her mobility limitations,

because she was “flagged” as disabled, she required the assistance of an electric cart

intended for disabled passengers, and she is “an older . . . heavy set woman, with a cane.”

Appellant Br. 18. According to Leonard, the appellee’s failure to offer special assistance

affirmatively at every step of the way, such as by offering a wheelchair or other

assistance with stepping onto the shuttle, resulted in her fall and injury.

       Assuming for the sake of argument that this is the level of care demanded from

each of the appellees, Leonard’s claim still fails because she cannot establish that any

alleged breach was the proximate cause of her fall and injury. “Proximate cause consists

of ‘any cause which in the natural and continuous sequence, unbroken by an efficient

intervening cause, produces the result complained of and without which the result would

not have occurred.’” Townsend, 110 A.3d at 61 (quoting Conklin v. Hannoch Weisman,

678 A.2d 1060, 1071 (N.J. 1996)). If multiple acts or omissions could have caused an

event, there must be some evidence that an actor’s negligent conduct was a “substantial

factor” in causing the harm. Kulas v. Pub. Serv. Elec. & Gas Co., 196 A.2d 769, 772

(N.J. 1964). An “actor’s negligent conduct is not a substantial factor in bringing about

harm to another if it would have been sustained even if the actor had not been

negligent.’” Id. (citations omitted).

       It is common ground between the parties that Leonard was relying on her daughter

to make any necessary accommodations for her mobility needs, a responsibility that

Velazquez willingly assumed. Velazquez and Leonard voluntarily rode the electric cart

that Velazquez requested, and neither of them specifically requested a wheelchair or any

                                              6
other special assistance during their transfer at Newark. In fact, Velazquez testified that

her mother did not need assistance beyond what she was able to provide: “[S]he didn’t

need any help other than like me. . . . I was her companion for the flight. And that’s all

she needed besides her cane.” Aa325. Leonard has not offered any facts to contradict

that statement, i.e., a factual rebuttal that would allow a reasonable juror to find that

Velazquez or Leonard would have accepted additional assistance if offered. And there is

no indication that the appellees would have refused to assist her if asked. In those

circumstances, common carriers cannot be expected to override a passenger’s preferences

and insist on offering additional assistance at every turn or require that it be accepted by

an otherwise mobile passenger. A common carrier’s heightened duty of care cannot go

so far as to limit a passenger’s autonomy.

       In short, Leonard’s intentional decision to request and accept certain assistance

while foregoing other options created the situation in which she found herself when she

slipped and fell. The appellee’s reasonable acquiescence in those choices cannot be

deemed a substantial factor in their consequences.

                                              IV

       For these reasons, we will affirm summary judgment for the appellees.




                                               7
Leonard, et al. v. Golden Touch Transportation, et al., No. 19-1075
JORDAN, Circuit Judge, concurring in the judgment

            I agree fully with the Majority’s recitation of the underlying facts in this case,

its framing of the standard of review and issues raised on appeal, and, most significantly,

its decision to affirm the District Court’s dismissal of the plaintiffs’ claims. I write

separately, however, because, unlike the Majority, I do not see this case as turning on the

question of proximate cause. Instead, in my view, it turns on whether any of the

defendants breached a duty of care to the plaintiffs. Even assuming that, as the plaintiffs

contend, the defendants owed a heightened duty of care to the elderly plaintiff, Ms.

Leonard, the plaintiffs nevertheless failed to carry their burden of presenting evidence

sufficient to raise a genuine dispute of material fact as to whether any defendant breached

its duty.

            For example, the plaintiffs cite no evidence that the entrance step on the bus –

the step on which Leonard fell and injured herself – was broken, slippery, obstructed, or

otherwise improperly maintained. While the plaintiffs speculate that the step may have

been higher than it ought to have been, the record is devoid of evidence, expert or

otherwise, that the height of the step was unsafe for someone in Leonard’s condition,

even if it were as high as the plaintiffs claimed it to be.

            The plaintiffs similarly fail to cite evidence supporting a reasonable inference

that the defendants failed to provide Leonard with some additional assistance she was

entitled to. Although plaintiff Velazquez had Leonard “flagged” as needing extra help,

neither plaintiff requested a wheelchair for Leonard. Leonard left the arrangements to


                                                1
Velazquez, and Velazquez did not believe that Leonard needed a wheelchair. According

to Velazquez, she “probably” explained to United that Leonard needed assistance because

“the walk[] in the airport is such a long walk[.]” Aa 336. But that concern was addressed

by the provision of an electronic cart to transport the plaintiffs from their arrival gate at

the Newark airport to the shuttle bus gate. The plaintiffs never expressed any concern

about Leonard’s ability to traverse the ramp to the shuttle bus or to board the bus, even

after specifically being told that is what they needed to do. As aptly stated by the

Majority, albeit in the proximate cause context, “common carriers cannot be expected to

override a passenger’s preferences and insist on offering additional assistance at every

turn or require that it be accepted by an otherwise mobile passenger.” Majority Op. at 7.

          In short, I believe we are dealing with a question of whether any further duty to

the plaintiffs was owed, and I would say it was not. I would hold that the defendants

could not have breached a duty to the plaintiffs by failing to override the plaintiffs’

preference to continue their journey without seeking additional help, nor by failing to

offer help that there is no evidence was needed or would have been accepted. Because

the plaintiffs have not adduced evidence sufficient to raise a genuine dispute as to

whether the defendants breached a duty of care, I would affirm the District Court’s

dismissal on that basis and would not reach the issue of proximate cause.




                                               2
