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September 24, 1991


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 Miami.

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 party 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 or ...

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