death did arise out of such an accident, as United Airlines contends, the Warsaw Convention is the exclusive basis for plaintiff's claims under Lockerbie and, as conceded by plaintiff, the claims are time-barred under the Warsaw Convention's two-year limitations period. See Warsaw Convention art. 29 ("The right to damages shall be extinguished if an action is not brought within 2 years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the transportation stopped."). The parties also dispute the preemptive effect of the Warsaw Convention on state law claims for injuries that do not arise out of Warsaw Convention accidents. For the reasons set forth below, I conclude that neither Mrs. Seekree's heart attack nor United Airlines' alleged failure to provide additional oxygen constitutes an accident within the meaning of the Warsaw Convention, and that plaintiff's common law negligence claims are not preempted. Accordingly, defendant's motion for summary judgment is denied.
A. Accidents Governed by the Warsaw Convention
In Air France v. Saks the Supreme Court construed the term accident as used in Article 17
of the Warsaw Convention to mean "an unexpected or unusual event or happening that is external to the passenger." 470 U.S. at 405. Applying this definition, the Court held that deafness caused by normal cabin pressure changes during routine landing descent did not arise out of an accident covered by the Warsaw Convention. 470 U.S. at 396, 406. Here, as there is no contention that any unusual, external event triggered Mrs. Seekree's heart attack, it is clear that the heart attack itself was not caused by an accident.
United Airlines concedes that a heart attack suffered on an airplane would generally not constitute an accident, but contends that the alleged failure to provide adequate oxygen and other medical supplies constitutes an accident, as it was an unusual or unexpected event external to Mrs. Seekree.
Although the definition of accident set forth in Saks is to be construed flexibly and a passenger need only prove "that some link in the [causal] chain was an unusual or unexpected event external to the passenger," 470 U.S. at 405, 406, courts have held that death caused by a heart attack suffered on a normal flight did not arise from a Warsaw Convention accident even if alleged negligence on the part of airline staff was a link in the chain of causation. See, e.g., Fischer v. Northwest Airlines, Inc., 623 F. Supp. 1064, 1065 (N.D. Ill. 1985) (failure to treat passenger suffering heart attack was not accident for which liability could be imposed under Warsaw Convention); Northern Trust Co. v. American Airlines, Inc., 142 Ill. App. 3d 21, 491 N.E.2d 417, 422, 96 Ill. Dec. 371 (Ill. App. Ct. 1986) (heart attack caused by passenger's ill health was not an accident within meaning of Warsaw Convention) cf. Walker v. Eastern Air Lines, Inc., 775 F. Supp. 111, 114 (S.D.N.Y. 1991), reargument denied, 785 F. Supp. 1168 (S.D.N.Y. 1992) (parties agreed that death caused by asthma attack did not arise from an accident); Abramson v. Japan Airlines Co., 739 F.2d 130, 133 (3d Cir. 1984) (pre-Saks case in which court held that airline's failure to aid passenger suffering hernia attack during normal flight was not an accident), cert. denied, 470 U.S. 1059, 84 L. Ed. 2d 835, 105 S. Ct. 1776 (1985). But see Seguritan v. Northwest Airlines, Inc., 86 A.D.2d 658, 446 N.Y.S.2d 397, 398-99 (N.Y. App. Div.) (holding that failure to aid passenger suffering heart attack was an accident, and as complaint was served more than two years after plane arrived at destination, claim was time-barred), aff'd, 57 N.Y.2d 767, 454 N.Y.S.2d 991, 440 N.E.2d 1339 (1982). I conclude that the failure to provide adequate medical care to a heart attack victim is not the type of external, unusual event for which liability is imposed under the Warsaw Convention.
Accordingly, defendant's motion for summary judgment on the grounds that the claims arose from an "accident" and are time barred under the Warsaw Convention is denied.
B. Preemption of State Law Claims
United Airlines also argues that plaintiff's common law claims must be dismissed because the Warsaw Convention is the "sole basis of recovery available to a passenger injured while travelling pursuant to a contract of international carriage." Def. Mem. at 6, Point II. Thus, defendant contends that the Warsaw Convention preempts all claims seeking recovery for injuries sustained on international flights, whether or not the injury was caused by an "accident" covered by the Warsaw Convention. In essence, defendant argues that passengers who sustain injuries on international flights other than by accidental means may not seek relief from the airline involved, even if the airline was negligent.
The Supreme Court has not yet decided whether a plaintiff may assert state law claims for injuries that are sustained on an international flight but are not caused by an accident, and, hence, are not covered by the Warsaw Convention's liability provision. See Saks, 470 U.S. at 408 (declining to express view on viability of state law claims where injury was not caused by an accident). Nor has the Second Circuit addressed this precise issue, although it has indicated that the Warsaw Convention does not preclude such claims. See Lockerbie, 928 F.2d at 1273 (holding that Warsaw Convention is exclusive remedy for claims arising under its provisions, but recognizing that a plaintiff may bring "a state cause of action when the claim does not arise under the Warsaw Convention . . . .").
Courts addressing the issue have held that, although the Warsaw Convention preempts state law claims falling within its scope, it does not preempt claims that are not covered by its provisions. See Abramson, 739 F.2d at 134; Walker, 775 F. Supp. at 115-16 ("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."); Fischer, 623 F. Supp. at 1066 (after finding that neither heart attack nor airline's failure to provide treatment was accident within meaning of Warsaw Convention, court denied motion to dismiss common law negligence claim); Fischer v. Northwest Airlines, Inc., 1990 U.S. Dist. LEXIS 12209, No. 85 C 08432, 1990 WL 139271, at *2 (N.D. Ill. 1990) (only those claims falling within scope of Warsaw Convention are preempted); see also Husserl v. Swiss Air Transport Co., 351 F. Supp. 702, 706 (S.D.N.Y. 1972) ("If 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 rules."), aff'd, 485 F.2d 1240 (2d Cir. 1973). But see Chendrimada v. Air-India, 802 F. Supp. 1089, 1091 (S.D.N.Y. 1992).
Addressing the issue in a factual situation similar to the instant case, the court in Walker rejected the argument that the Warsaw Convention preempts state law claims that do not arise out of accidents covered by its liability provision. 775 F. Supp. at 116. As Judge Leisure reasoned, "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." Walker, 775 F. Supp. at 115. Logic and fairness support this result, as a contrary rule would shield airlines from liability for negligence that does not involve an accident. It is highly doubtful that the drafters of the Warsaw Convention intended such a far-reaching limitation of liability. See Walker, 785 F. Supp. at 1171-72 (main purpose of Warsaw Convention was to limit carriers' liability arising out of airplane crashes). Accordingly, I conclude that plaintiff's state law claims are not preempted by the Warsaw Convention.
For the reasons set forth above, United Airlines' motion for summary judgment is denied. United Airlines' motion for leave to amend its answer to assert the Warsaw Convention defense is denied on the grounds of futility. See Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (leave to amend pleadings may be denied where amendment "is unlikely to be productive") (citing Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962)); Posadas de Mexico, S.A. de C.V. v. Dukes, 757 F. Supp. 297, 302 (S.D.N.Y. 1991) (denying motion for leave to amend answer to assert affirmative defense where such amendment would be "a futile endeavor").
Dated: New York, New York
February 21, 1996
United States District Judge