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FISHMAN v. DELTA AIR LINES

September 12, 1996

PENINA FISHMAN, an infant by her mother, and natural guardian, MICHELLE FISHMAN, and MICHELLE FISHMAN, individually, Plaintiffs, against DELTA AIR LINES, INC., Defendant.


The opinion of the court was delivered by: CEDARBAUM

 CEDARBAUM, J.

 This action arises out of an incident aboard a Delta Airlines, Inc. flight from Tel Aviv to New York City in which a flight attendant spilled scalding water on Penina Fishman, a minor. Two issues are presented on this motion: (1) whether the injuries alleged were caused by an "accident" within the meaning of the Warsaw Convention, thus preempting claims asserted under state law; and (2) whether the time limitation for bringing a suit under the Warsaw Convention should be tolled during Penina's infancy.

 On Penina's behalf, her mother, Michelle Fishman, asserts a claim pursuant to Article 17 of the Convention for the Unification of Certain Rules Relating to International Transportation by Air, October 12, 1929, 49 Stat. 3000, T.S. 876 (1934), reprinted at 49 U.S.C. § 40105 note (1994) ("Warsaw Convention"), as well as claims under New York State law for negligence and intentional denial of medical treatment. On her own behalf, Fishman asserts claims under New York State law for negligent and intentional infliction of emotional distress, and for loss of services and medical expenses. Delta has moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(5) on the grounds that Fishman failed to sue within two years after she and Penina arrived in New York, a condition precedent to suit under the Warsaw Convention, and that the state law claims are preempted by the Warsaw Convention. For the reasons that follow, Delta's motion is granted.

 Background

 On November 9, 1993, Michelle and Penina Fishman were passengers on a Delta flight from Tel Aviv to New York City, with a stopover in Paris. (Am. Compl. P 9.) While the plane was descending in preparation for landing in Paris, Penina experienced pain in her right ear. (Id. P 10.) A flight attendant placed a hot cloth, cup and water near Penina's right ear causing her to be burned. (Id. P 11.) According to the complaint, the flight attendant did not alert Michelle to Penina's injury, and Michelle did not discover the injury until after the plane had landed in Paris. (Id. PP 13, 14.) The flight attendant failed to provide first aid, even after Michelle requested it. (Id. PP 13, 15-16.) After repeated requests from Michelle, Delta arranged for Penina to receive medical treatment at Orly Airport in Paris. (Id. P 19.) The Fishmans arrived in New York City on November 9, 1993. (Decl. of Howard K. Fishman P 2.) Plaintiff did not file the complaint until February 22, 1996.

 Discussion

 The Second Circuit has held that state law claims are preempted when they fall within the scope of the Warsaw Convention. In re Air Disaster at Lockerbie, Scotland, 928 F.2d 1267, 1273 (2d Cir.), cert. denied, 502 U.S. 920, 116 L. Ed. 2d 272, 112 S. Ct. 331 (1991). Article 17 of the Warsaw Convention provides:

 
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.

 49 U.S.C. § 40105 note (emphasis added). The Supreme Court has held that a claim falls within the scope of Article 17 of the Warsaw Convention if "[the] passenger's injury is caused by an unexpected or unusual event or happening that is external to the passenger." Air France v. Saks, 470 U.S. 392, 405, 84 L. Ed. 2d 289, 300, 105 S. Ct. 1338 (1985) (emphasis added).

 Fishman argues that Delta's failure to provide Penina with prompt medical care was not an "accident" within the meaning of the Warsaw Convention. She contends that this case is analogous to cases in which courts have held that the conduct of an airline which exacerbated a passenger's pre-existing physical condition was not an "accident." See, e.g., Abramson v. Japan Airlines Co., 739 F.2d 130, 133 (3d Cir. 1984) (pre-existing paraesophageal hiatal hernia); Tandon v. United Air Lines, 926 F. Supp. 366, 369-70 (S.D.N.Y. 1996) (heart attack); Fischer v. Northwest Airlines, Inc., 623 F. Supp. 1064, 1065 (N.D. Ill. 1985) (heart attack); 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 congenital asthmatic condition did not arise from an "accident").

 In making this argument Fishman ignores the fact that Penina had no pre-existing condition and that the grievances of both mother and child arise from the accidental burning of Penina by a flight attendant. It is not the theory of recovery, but the facts that control. The underpinning of the claims of both mother and child is the scalding of Penina by a flight attendant, an unexpected event that was external to both Fishmans. The precipitating cause, the "accident," cannot be artificially separated from its results as Fishman attempts to do in order to avoid the Warsaw Convention. Because Penina's injuries and Michelle's were caused by an "accident" within the meaning of the Warsaw Convention, the Convention provides the exclusive remedy and the state law claims are preempted. Cf. Adler v. Malev Hungarian Airlines, 1992 U.S. Dist. LEXIS 519, No. 89 Civ. 8252 (WCC), 1992 WL 15144 (S.D.N.Y. Jan 23, 1992) (Accident which caused psychological injury without bodily injury covered by Warsaw Convention. Even though such injury is not compensable under Article 17, state law claims preempted.).

 Delta argues that in order to assert a claim under the Warsaw Convention, Fishman had to bring suit within two years of the date on which she and Penina arrived in New York. Article 29 of the Warsaw Convention provides:

 
(1) 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, ...

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