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
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
or conjecture.'" Western World Insurance Co. v. Stack Oil,
Inc., 922 F.2d 118, 121 (2d Cir. 1990) (quoting Borthwick v.
First Georgetown Securities, Inc., 892 F.2d 178, 181 (2d Cir.
1989) and Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 12 (2d
Cir. 1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94
L.Ed.2d 762 (1987)).
II. Applicability of the Warsaw Convention
A. Background of the Warsaw Convention
Id. at 1270 (citations omitted). The American translation of
Article 17 of the Warsaw Convention provides that
The carrier shall be liable for damage sustained
in the event of the death or wounding of a
passenger or any other bodily injury suffered 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.
Article 24 provides that in "cases covered by article 17," any
action for damages "can only be brought subject to the
conditions and limits set out in this convention." Article 22
places limits on air carriers' liability in the transportation
of passengers and cargo, and Article 25 provides that a carrier
cannot avail itself of these limitations on liability if damage
is caused by "willful misconduct."
B. Warsaw Convention Preemption of State Law
"[A]s a treaty, the Warsaw Convention is the Supreme Law of
the Land" under the Supremacy Clause of Article VI of the
United States Constitution. In re Air Disaster at Lockerbie,
928 F.2d 1267, 1278 (2d Cir. 1991), petition for cert. filed
(Aug. 12, 1991). There are several routes by which federal law
may preempt state law. A state law that directly conflicts with
federal law so that compliance with both is an absolute
physical impossibility is preempted by federal law. Wisconsin
Public Intervenor v. Mortier, ___ U.S. ___, 111 S.Ct. 2476,
2482, 115 L.Ed.2d 532 (1991). Preemption may also be found when
Congress expressly preempts state law, when Congress enacts a
scheme of federal legislation so pervasive that a court may
infer that Congress left no room for states to legislate in the
area, or when the subject matter "demands uniformity vital to
national interests such that allowing state regulation `would
create potential frustration of national purposes.'" In re Air
Disaster at Lockerbie, 928 F.2d at 1275 (quoting San Diego
Building Trades Council v. Garmon, 359 U.S. 236, 244, 79 S.Ct.
773, 779, 3 L.Ed.2d 775 (1959)). There is, however, "a general
presumption against finding preemption of state law." Id. at
1278 (citing Motor Vehicle Manufacturers Association of United
States, Inc. v. Abrams, 899 F.2d 1315, 1319 (2d Cir. 1990)).
The language of Article 17 of the Warsaw Convention — "if
the accident which caused the damage so sustained" — makes it
clear that Article 17 covers a carrier's liability for death or
bodily injury to a passenger caused by an "accident," but does
not cover cases of death or bodily injury that do not arise
from accidents in air travel. No other provision of the Warsaw
Convention covers carrier liability for death or bodily injury
to passengers in situations not involving accidents.
Both plaintiff and Eastern agree that Eastern is not liable
to plaintiff for the death of her husband under Article 17,
because no "accident" took place. What the parties disagree on
is the conclusion to be drawn from this point. Plaintiff argues
that because her claim is not covered by Article 17 or any
other provision of the Warsaw Convention, her claim is not
preempted and should not be dismissed. Eastern, on the other
hand, argues that because plaintiff's husband was travelling on
a ticket providing for international air transportation, the
Warsaw Convention preempts any cause of action plaintiff might
have under state law; and, because the Warsaw Convention
provides for carrier liability for passenger death only in the
event of an "accident," and not in other circumstances,
plaintiff's claim should be dismissed.
The Supreme Court has twice expressly declined to answer the
question of whether state law causes of action may go forward
if the Warsaw Convention liability rules do not apply. See
Eastern Airlines, Inc. v. Floyd, ___ U.S. ___, 111 S.Ct. 1489,
1502, 113 L.Ed.2d 569 (1991); Air France v. Saks, 470 U.S. 392,
408, 105 S.Ct. 1338, 1346, 84 L.Ed.2d 289 (1985).
In In re Air Disaster at Lockerbie, Scotland, 928 F.2d 1267
(2d Cir. 1991), petition for cert. filed (Aug. 12, 1991), a
case on which Eastern mistakenly places great reliance in its
motion for summary judgment, the Second Circuit was confronted
with the question of "whether state causes of action
are preempted when the state claim alleged falls within the
scope of the Convention." Id. at 1273 (emphasis added). The
Court answered that question in the affirmative, holding that
the Warsaw Convention "bars state wrongful death actions in
cases arising under it," and, because punitive damage awards
are inconsistent with the purposes of the Warsaw Convention,
plaintiffs may not recover such damages under the provisions of
the Convention itself. Id. at 1270. The Court found state
wrongful death actions (including punitive damage awards) in
cases arising under the Convention to be preempted because
allowing state law claims would frustrate the purpose of
uniformity in air carriers' liabilities in the event of
accidents. At the same time, the Second Circuit emphasized that
"when the claim does not arise under the Warsaw Convention," a
plaintiff "plainly may institute" such a cause of action under
state law. Id. at 1273. See also id. at 1274 ("the Convention
should be interpreted as making all actions — other than those
not based on the Convention — exclusive under it") (emphasis
Under the Second Circuit's Lockerbie analysis, the mere fact
that a passenger was travelling on an international air flight
does not mean that every claim the passenger might have against
the air carrier for death or bodily injury is preempted by the
Warsaw Convention; rather, only those claims that fall within
the scope of the Convention are preempted. Article 17 governs
an air carrier's liability for death or bodily injury of a
passenger caused by an accident, but not for death or bodily
injury not caused by an accident. See Air France v. Saks,
470 U.S. 392, 396, 105 S.Ct. 1338, 1340, 84 L.Ed.2d 289 (1985) (air
carrier "is liable to a passenger under the terms of the Warsaw
Convention only if a passenger proves that an `accident' was
the cause of her injury"). Because plaintiff's claim is not
within the scope of the Warsaw Convention, plaintiff "plainly
may institute" it against Eastern. In re Air Disaster at
Lockerbie, 928 F.2d at 1273.
The Second Circuit's Lockerbie analysis is in accord with
other decisions that have concluded that claims against air
carriers not covered by the Warsaw Convention are not
preempted. In Abramson v. Japan Airlines Co., 739 F.2d 130 (3d
Cir. 1984) (cited by the Second Circuit in Lockerbie), the
facts of which are similar to the instant case, a passenger on
an international flight suffered an attack from a preexisting
condition, paraesophageal hiatal hernia. The passenger sued the
air carrier, alleging that the negligent conduct of the carrier
and its employees aggravated the preexisting condition, which
worsened the effects of the attack and ultimately required
surgery. The passenger sued under both the Warsaw Convention
and state law.
The Third Circuit found that no "accident" had occurred,
thereby making the Warsaw Convention inapplicable, and affirmed
the district court's grant of summary judgment against the
passenger on the Warsaw Convention claim. The Third Circuit
did, however, vacate the district court's grant of summary
judgment against the passenger on the state law claims,
concluding that the Warsaw Convention does not exclusively
govern claims brought by passengers against air carriers
arising out of international flights, and that when the
Convention does not apply, state law claims may be instituted
against an air carrier.
Similarly, in Husserl v. Swiss Air Transport Co., 351 F. Supp. 702
(S.D.N.Y. 1972), aff'd, 485 F.2d 1240 (2d Cir. 1973), the
[T]he Convention does not "exclusively regulate"
the relationship between passenger and carrier on
an international flight, but rather sets limits on
and renders uniform certain of the aspects of that
relationship. . . . [I]f the Convention "applies,"
it applies to limit — not eliminate — liability;
if it does not apply, it leaves liability to be
established according to traditional common law
Id. at 706 (emphasis added).
Eastern has not provided this Court with any decision, nor is
the Court aware of any, in which a court found a claim against
an air carrier for death or bodily
injury not arising out of an accident to be preempted by the
Warsaw Convention. The overwhelming consensus of the courts
that have addressed the issue is that an airline passenger may
institute a claim under state law for death or injury sustained
on an international flight when an accident is not involved. As
the Third Circuit noted in Abramson:
All the other courts considering this issue have
similarly concluded that the Warsaw Convention's
limitation and theory of liability is exclusive
when it applies (i.e., when there is an accident),
but it does not preclude alternative theories of
recovery. . . .
Other courts, after finding the Warsaw
Convention inapplicable, have permitted
maintenance of claims brought on other grounds.
739 F.2d at 134 (collecting cases). Plaintiff's negligence
action under state law is therefore not preempted by the Warsaw
III. Summary Judgment as to Plaintiff's Negligence Action
Because the Warsaw Convention does not preempt plaintiff's
state law claim, the Court must next evaluate whether Eastern
has shown, in moving for summary judgment, "that there is no
genuine issue as to any material fact and that [Eastern] is
entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
Eastern has devoted nearly all of the argument in its summary
judgment motion papers to the issue of preemption. Eastern has
pointed to only the undisputed fact that plaintiff's husband
died of "natural" causes, according to the Certificate of Death
and Autopsy Report.*fn2 The undisputed fact that plaintiff's
husband died of "natural" causes does not, however, answer the
question of whether Eastern is entitled to summary judgment.
Plaintiff alleges that Eastern and its employees, through their
actions (or inaction), aggravated her husband's preexisting
condition and contributed to his death on the plane.
Plaintiff's claim against Eastern is for negligence under New
York law, and may turn on such issues as, inter alia, the duty
of care Eastern and its employees owed plaintiff's husband,
whether that duty was breached, and the causal connection
between the actions (or inaction) of Eastern and its employees
and plaintiff's husband's death. See, e.g., Febesh v. Elcejay
Inn Corp., 157 A.D.2d 102, 555 N.Y.S.2d 46 (1st Dep't 1990).
Also, as a common carrier, Eastern's liability may depend upon
what its employees knew or should have known regarding
plaintiff's husband's condition. See, e.g., O'Leary v. American
Airlines, 100 A.D.2d 959, 960-61, 475 N.Y.S.2d 285, 288 (2d
Plaintiff's claim therefore involves a number of
fact-specific questions that will affect the outcome of her
suit and are properly to be determined by a jury. "Negligence
cases by their very nature do not usually lend themselves to
summary judgment, since often, even if all parties are in
agreement as to the underlying facts, the very question of
negligence is itself a question for jury determination."
Ugarriza v. Schmieder, 46 N.Y.2d 471, 474, 386 N.E.2d 1324,
1325, 414 N.Y.S.2d 304, 305 (1979).
In addition, plaintiff has demonstrated the existence of
"disputes over facts that might affect the outcome of the suit
under the governing law," which "preclude[s] 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).
For example, in her answers to interrogatories, plaintiff
identifies witnesses to the series of events leading up to the
death of her husband, one of whom was interviewed and made
statements that call into question the actions (or inaction) of
Eastern's employees on the flight.*fn3 Plaintiff has therefore
shown that genuine disputes as to material issues of fact do
exist, and are sufficient to preclude granting summary judgment
in favor of Eastern.
For the reasons set forth above, Eastern's motion for summary
judgment pursuant to Fed.R.Civ.P. 56 is denied.