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September 10, 1986


The opinion of the court was delivered by: LEISURE

LEISURE, District Judge :

Plaintiff Margaret Margrave ("Margrave") claims that she suffered a back injury as the result of an accident aboard a plane owned by defendant British Airways, and that the airline is therefore liable for her ensuing damages under the Warsaw Convention. *fn1" British Airways now moves to dismiss Margrave's claim for failure to state a cause of action, pursuant to Fed. R. Civ. P. 12(b)(6) or, in the alternative, for summary judgment under Fed. R. Civ. P. 56. Since matters outside the pleadings have been presented to and been considered by the court, defendant's motion will be treated as one for summary judgment. See Fed. R. Civ. P. 12(b).


 The facts in this case are largely undisputed. On August 29, 1984, plaintiff Margrave, then seventy-five years old, was a passenger on British Airways Flight 176, scheduled to depart from Kennedy International Airport in New York and to arrive in Heathrow Airport in London. Plaintiff boarded the aircraft, a Boeing 747, at 8:30 P.M. The plane left the terminal gate at the scheduled time of departure, 9:00 P.M. At about that time, the British Airways Control Center in London received a telephone threat that a bomb was on board British Airways Flight 174, another London-bound flight which had left New York approximately two hours earlier. Flight 174 was diverted to Boston; passengers aboard Flight 176 were not notified of the bomb threat.

 Subsequently, it was determined that eleven pieces of baggage from the endangered Flight 174 had been placed on Flight 176. As a result, Flight 176 returned to the terminal gate, and the baggage in question was removed. In total, the bomb threat and ensuing safety measures caused a delay of approximately two hours. At 11:04 P.M., while preparing for takeoff, a mechanical problem forced Flight 176 to return once again to the terminal. An additional three hours passed during the investigation of this mechanical problem and the transfer of passengers to a new plane. Flight 176 finally departed at 2:21 A.M. on August 30, 1984, five hours and twenty-one minutes after its scheduled departure time.

 During most of the delay, plaintiff remained seated in a "very cramped position" aboard defendant's airplane, see Deposition of Margaret Margrave ("Margrave Dep.") at 50, with her seat belt fastened. Id. at 20. Although plaintiff acknowledges that she left the plane and was able to "move about" in the airport terminal during the period in which a substitute aircraft was being prepared for use, see id. at 17, she maintains that passengers were generally "not able to get up" during the delay and that "no one could even enjoy stretching." Id. at 20. Plaintiff alleges that she suffered back pain throughout this ordeal, id., although she admits that she never informed any British Airways personnel of her discomfort during the delay. Id. at 21. Moreover, plaintiff concedes that, at least while she was waiting in the terminal, nothing prevented her from leaving the airport, other than her understandable reluctance to avoid missing her trip. See id. at 42-43; see also Deposition of British Airways employee Jorgen Pedersen ("Pedersen Dep.") at 28 (any passenger on the flight who wanted to discontinue while the airplane was at the gate would be free to leave).

 After Flight 176 had left Kennedy Airport, Margrave told a British Airways stewardess that her back was hurting her very much. See Margrave Dep. at 21. In response to this complaint, the stewardess assured plaintiff that "[w]e will be there soon." Id. Upon her arrival in England, plaintiff continued to suffer back pain and sought medical treatment. The physicians who treated Margrave in England took no X-rays or other preventative measures, although they did prescribe painkillers. Plaintiff's activities abroad entailed visiting three different cities in England and staying in university dormitories.

 When plaintiff returned to New York on September 24, 1984, her doctors discovered compression fractures at the T-11, L-1, and L-2 levels of her spine. Because of these fractures, plaintiff was admitted to the New York Hospital for treatment on October 3, 1984, where she remained for over three weeks. Plaintiff alleges that she experienced severe back pain during the delay of Flight 176, and now claims that the delay itself was the cause of her injuries.


 A. Whether There Was an "Accident"

 Article 17 of the Warsaw Convention makes air carriers absolutely liable for injuries sustained by a passenger "if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking." 49 Stat. 3000; see Air France v. Saks, 470 U.S. 392, 105 S. Ct. 1338, 1339-40, 84 L. Ed. 2d 289 (1985). In moving for summary judgment, defendant argues that the plaintiff's injuries were not caused by an. "accident" within the meaning of Article 17 of the Warsaw Convention.

 In support of this argument, defendant cites plaintiff's own sworn statement that her back injury was attributable solely to the fact that she sat in a "very cramped position" for an extended period while on board defendant's plane. See Margrave Dep. at 50-51. As defendant points out, however, the mere act of sitting aboard an aircraft is a normal aspect of commercial flying. Scherer v. Pan Am, 54 A.D.2d 636, 636, 387 N.Y.S.2d 580, 581 (1st Dep't 1976). Moreover, courts have consistently held that normal travel procedures which produce an injury due to a passenger's peculiar internal condition are not "accidents" within the meaning of Article 17. /--- See Air France v. Saks, 105 S. Ct. at 1340 (citing cases).

 Thus, extended sitting in an airplane, even in an uncomfortable position, cannot properly be characterized as the sort of "accident" that triggers an airline's liability under the Warsaw Convention. Plaintiff's counsel argues, however, that even though extended sitting was the immediate cause of plaintiff's injury, the "accident" that set off the chain of events which eventually led to that injury was, in fact, the bomb threat to British Airways Flight 174.

 Arguably, such a definition of the "accident" at issue distorts the factual record in this case beyond recognition for the transparent purpose of forcing plaintiff's injuries into the category of those compensable under the Warsaw Convention. Nonetheless, on a motion for summary judgment, the court is required to resolve all questionable inferences in favor of the party opposing the motion. See. United States v. Matheson, 532 F.2d 809, 813 (2d Cir.), cert. denied, 429 U.S. 823, 50 L. Ed. 2d 85, 97 S. Ct. 75 (1976). Accordingly, this Court accepts, for ...

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