The opinion of the court was delivered by: Trager, District Judge.
Plaintiffs, Drs. Cielo and James Alleyn, are suing The Port
Authority of New York and New Jersey, Delta Air Lines, Inc.,
MMantec, Schindler Elevator Corp. and its unincorporated
subsidiary Millar Elevator Service for personal injury, loss of
consortium and other causes of action arising from injuries Dr.
Cielo Alleyn sustained as a result of an escalator accident on
October 6, 1995. Currently, all defendants (except the Port
Authority) have moved for summary judgment on the issue of
limiting liability under the treaty popularly known as the Warsaw
Specifically, Delta has moved for complete summary judgment and
a total liability limitation of $75,000, alleging that Dr.
Alleyn's accident took place while disembarking an international
flight and thus falls under Article 17 of the Warsaw Convention.
MMantec, as contractor and agent of Delta, has moved for partial
summary judgment on the same ground or, in the alternative, has
moved in opposition to Delta's motion. Schindler and Miller ("S &
M"), as subcontractors of Delta and agents of MMantec, have moved
to limit their collective liability to $75,000 as well.
Plaintiffs have opposed these motions, alleging that Dr. Alleyn
had finished disembarking when her accident occurred, that the
provisions of the Warsaw Convention do not apply to MMantec and S
& M, and that the liability limitation should not apply to any
defendant because the injurious conduct was willful.
On October 6, 1995 plaintiffs arrived at New York's JFK airport
on Delta Flight 149. The Alleyns had departed from Miami, Florida
on September 14 and flew to Madrid, Spain for a vacation which
included travel in Madrid and Barcelona and a cruise to Venice,
Italy. Although plaintiffs were to depart from Milan, Italy on
October 6 to return to Miami through JFK, their reservations were
changed; they flew to JFK on Flight 149 from Rome instead.
Plaintiffs arrived at Gate 5 in Delta's JFK Flight Terminal
around 3:55pm on October 6. A Delta flight attendant stationed at
the plane's door instructed the Alleyns to follow the line of
deplaning passengers to the immigration and customs area. A Delta
security agent was leading this line of passengers to the
immigration area,*fn2 which is approximately 250 feet from the
gate. (While plaintiffs' depositions reflect that neither of them
remember the agent with certainty, Dr. Alleyn expressed her
belief that the group of passengers was accompanied by an airline
or terminal employee. See Exhibits to Notice of Motion for
Summary Judgment in Favor of Delta Air Lines, Inc. Limiting
Liability, Ex. B at 10(25) to 11(2)-(4) (transcript of the
deposition of Cielo Alleyn).)
Flight 149's passengers proceeded south down an enclosed
corridor for 52 feet. See id. at Ex. F. They then turned right
into a second corridor where they proceeded in a westerly
direction for 58 feet. See id. at Ex. G. The second corridor
turned 90 degrees and emptied into a small down escalator (# 9),
see id. at Exs. H, I, that led into a westerly corridor
bisecting a main north-south corridor. See id. at Exs. J, M.
Both plaintiffs and defendants agree that another group of
arriving passengers were in this main north-south corridor at the
same time Flight 149 passengers were. However, these passengers,
from a Swiss Air flight that arrived a few minutes before Delta's
fight at a gate south of gate 5, were held in the corridor by a
security agent until all flight 149 passengers had passed. See
Pagnotta Aff. at 8.*fn3 From this corridor, the Delta passengers
went west about 32 feet to a second down escalator (# 3) that led
to immigration and customs. See Exhibits to Notice of Motion
for Summary Judgment in Favor of Delta Air Lines, Inc. Limiting
Liability, Ex. L. It was a step on this # 3 escalator that
collapsed, trapping Dr. Alleyn's right leg in its mechanisms,
causing serious injuries.
Plaintiffs do not dispute the following additional facts
asserted by the defendants and germane to this motion:
1. The area traveled by Flight 149 passengers is a non-public
("sterile") portion of the terminal and leads only and directly
from the plane to immigration;
3. No other passengers or unauthorized personnel had the
ability to or did mingle with the ...