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WAXMAN v. C.I.S. MEXICANA DE AVIACION

July 14, 1998

PHILIP and BETH WAXMAN, Plaintiffs,
v.
C.I.S. MEXICANA DE AVIACION, S.A. DE C.V., a Mexican Corporation; and SIGNATURE FLIGHT SUPPORT CORPORATION, a Delaware Corporation, Defendants.



The opinion of the court was delivered by: COTE

OPINION and ORDER

 DENISE COTE, District Judge:

 Plaintiffs Philip and Beth Waxman, husband and wife, filed this action on October 1, 1997, alleging that the defendants negligently caused Mr. Waxman to sustain injuries during an international flight. Specifically, the Complaint asserts that Mr. Waxman was stuck in his right leg by a hypodermic needle that was protruding from the fabric of the seat immediately in front of his seat on a flight from New Jersey to Mexico. Mr. Waxman seeks compensatory damages from defendants Mexicana De Aviacion, S.A. De C.V. ("Mexicana"), the airline on whose plane he flew, and Signature Flight Support Corporation ("Signature"), the airline's cleaning subcontractor; Mrs. Waxman has filed a derivative claim for loss of consortium.

 The defendants have now moved for partial summary judgment under Rule 56, Fed. R. Civ. P., seeking in effect a declaration that the aggregate amount of damages recoverable in this action is limited to $ 75,000, pursuant to the "Warsaw Convention." *fn1" For the reasons set forth below, the motion is granted.

 BACKGROUND

 On January 25, 1997, Mr. and Mrs. Waxman flew from Newark, New Jersey to Cancun, Mexico aboard Mexicana Flight 877. The record indicates that Signature was at that time under contract to provide certain ground support services, including airplane interior cleaning services, to Mexicana's aircraft at Newark International Airport. Mexicana had contracted directly for such services with non-party Deutsche Lufthansa, A.G. ("Lufthansa"), which had in turn subcontracted certain of its obligations, including aircraft cleaning duties, to Signature. *fn2" During the flight, according to the Complaint, Philip Waxman was stuck in his right leg by a hypodermic needle that was protruding from the fabric in the back of the seat that was directly in front of his. Mr. Waxman received medical treatment upon his arrival in Cancun, and again upon his return to the United States; he also was given an HIV test and a vaccine for hepatitis. The Waxmans allege that it was the defendants' negligence in failing to remove the needle during pre-flight cleaning that was the cause of Mr. Waxman's injuries.

 As a result of his having been stuck in the leg by the needle, and in addition to this obvious physical injury, Mr. Waxman claims to have suffered an exacerbation of pre-existing psychiatric conditions caused by his "uncertainty surrounding the needle" -- ostensibly a fear of contracting a serious disease such as AIDS. Mr. Waxman also alleges that the injury prevented him and his wife from pursuing their plan of starting a family, inasmuch as the couple was advised not to engage in unprotected sex for a six-month period following the incident, presumably until it was conclusively established that he had not contracted any serious disease from the needle. Since the incident, Philip Waxman has tested negative for HIV and Beth Waxman has become pregnant. At no time did the Waxmans have either the needle or the fluid in the needle tested for HIV or any other disease.

 STANDARD

 Summary judgment may not be granted unless the submissions of the parties taken together "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." Rule 56(c), Fed. R. Civ. P. The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the Court must view all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Celotex Corp v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). When the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on "mere allegations or denials" of the facts asserted by the movant. Rule 56(e), Fed. R. Civ. P.; accord Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). In deciding whether to grant summary judgment, therefore, this Court must determine (1) whether a genuine factual dispute exists based on the evidence in the record, and (2) whether the fact in dispute is material based on the substantive law at issue.

 DISCUSSION

 The relevant facts being undisputed, the Court is faced with a fairly narrow legal question. The defendants contend that this action is governed by the Warsaw Convention, which applies to suits arising from international transportation of persons by aircraft for hire. See 49 U.S.C. ยง 40105 note. According to the defendants, therefore, under the terms of the Convention the Waxmans' state law claims are preempted and their recovery is limited to $ 75,000 in the aggregate. *fn3" The Waxmans dispute the Convention's applicability to this case on several grounds, but the present motion raises two issues primarily: (1) whether Mr. Waxman's injury may be deemed an "accident" within the meaning of the Convention, such that the incident falls within the Convention's purview; and (2) whether defendant Signature, as a subcontractor of Mexicana, may be considered a "carrier" under the Convention and thus entitled to the liability limitations thereof. These issues will be addressed in turn.

 A. Applicability of the Warsaw Convention: The Definition of "Accident"

 As a preliminary matter, it is evident that the Warsaw Convention preempts all state law claims within its scope. *fn4" See Fishman v. Delta Air Lines, Inc., 132 F.3d 138, 141 (2d Cir. 1998); In re Air Disaster at Lockerbie, Scotland, 928 F.2d 1267, 1273 (2d Cir. 1991) ("Lockerbie "). Accordingly, because there is no indication that the Convention is intended to "preserve a right to a state law cause of action in addition to the action provided under the Convention itself," Lockerbie, 928 F.2d at 1274, if the Convention is found to apply in this case, any state law claims by the Waxmans will be preempted.

 Article 17 of the 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 ...

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