The opinion of the court was delivered by: Leisure, District Judge:
This is a negligence action brought by plaintiff Thelma
Walker ("plaintiff"), individually and as administratrix of the
estate of her deceased husband, Father Patrick DeSouza Walker,
against defendant Eastern Air Lines, Inc. ("Eastern"). Eastern
has moved for summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure. For the reasons stated below,
Eastern's motion is denied.
On July 14, 1988, plaintiff's husband was a ticketed
passenger on Eastern's Flight No. 208 from Miami to New York.
Plaintiff's husband died during this flight. The ticket on
which he was travelling provided for round trip transportation
between Jamaica and New York, with an agreed stopping place in
Plaintiff filed a negligence action under state law against
Eastern in New York state court, alleging, inter alia, that
Eastern had a duty not to board passengers potentially not
physically able to fly and a duty to render aid, assistance,
and care to ill and infirm passengers on their flights, and
that Eastern failed to discharge these duties properly as to
her husband. Plaintiff's complaint alleges a total of $11
million in damages. Eastern removed the action to this Court on
the basis of diversity of citizenship, pursuant to the removal
provisions of 28 U.S.C. § 1441.
Plaintiff claims that her husband had a congenital asthmatic
condition and that, after flying from Jamaica and having a
stopover at Miami International Airport but before embarking on
the Eastern flight to New York, he experienced an asthmatic
attack. Plaintiff contends that Eastern was negligent in
allowing her husband to board the plane and in not providing
him with adequate care after boarding, and that Eastern's
actions aggravated her husband's preexisting condition and
contributed to his death.
Eastern denied the allegations of negligence, and has now
moved for summary judgment pursuant to Fed.R.Civ.P. 56(c).
Eastern contends that because plaintiff's husband was
travelling on a ticket that provided for round trip
transportation between Jamaica and the United States, the
Warsaw Convention*fn1 applies to this case. Eastern's argument
is that all claims against an air carrier by a passenger
arising out of an international flight are governed by the
Warsaw Convention; that the Convention preempts any such state
law claims; that the Convention does not provide for liability
of an air carrier for death or injury to a passenger not
resulting from an accident; and, because plaintiff's husband
died of "natural" causes and not from an accident, plaintiff's
action must be dismissed.
In response to Eastern's summary judgment motion, plaintiff
disputes the applicability of the Warsaw Convention to her
negligence action. Plaintiff argues that because her husband's
death was not caused by an accident as contemplated by the
Warsaw Convention, the Convention is totally inapplicable, and
does not preempt her state law claim.
I. Standard for Summary Judgment
Federal Rule of Civil Procedure 56(c) provides that summary
judgment "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505,
2509, 91 L.Ed.2d 202 (1986). "Summary judgment is appropriate
if, `after drawing all reasonable inferences in favor of the
against whom summary judgment is sought, no reasonable trier of
fact could find in favor of the non-moving party.'" United
States v. All Right, Title & Interest in Real Property, etc.,
901 F.2d 288, 290 (2d Cir. 1990) (quoting Murray v. National
Broadcasting Co., 844 F.2d 988, 992 (2d Cir.), cert. denied,
488 U.S. 955, 109 S.Ct. 391, 102 L.Ed.2d 380 (1988)).
The substantive law governing the case will identify those
facts that are material, and "[o]nly disputes over facts that
might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505, 2510, 91 L.Ed.2d 202 (1986). "[T]he judge's function is
not himself to weigh the evidence and determine the truth of
the matter but to determine whether there does indeed exist a
genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct.
at 2510; see also R.C. Bigelow, Inc. v. Unilever N.V.,
867 F.2d 102, 107 (2d Cir.), cert. denied, 493 U.S. 815, 110 S.Ct. 64,
107 L.Ed.2d 31 (1989). The party seeking summary judgment
"bears the initial responsibility of informing the district
court of the basis for its motion," and identifying which
materials "it believes demonstrate the absence of a genuine
issue of material fact." Celotex, supra, 477 U.S. at 323, 106
S.Ct. at 2553; see also Trebor Sportswear Co. v. Limited
Stores, Inc., 865 F.2d 506, 511 (2d Cir. 1989).
Once a motion for summary judgment is properly made, however,
the burden then shifts to the non-moving party, which "`must
set forth specific facts showing that there is a genuine issue
for trial.'" Anderson, 477 U.S. at 250, 106 S.Ct. at 2511
(quoting Fed.R.Civ.P. 56(e)). "[T]he mere existence of some
alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material
fact." Anderson, 477 U.S. at 247-48, 106 S.Ct. at 2509-10
(emphasis in original). "Conclusory allegations will not
suffice to create a genuine issue. There must be more than a
`scintilla of evidence,' and more than `some metaphysical doubt
as to the material facts.'" Delaware & Hudson Railway Co. v.
Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990)
(quoting Anderson, 477 U.S. at 252, 106 S.Ct. at 2512 and
Matsushita Electric Industrial Co., Ltd v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538
(1986)); see also Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.
1991). "The non-movant cannot `escape summary judgment merely
by vaguely asserting the existence of some unspecified disputed
material facts,' or defeat the motion through `mere speculation