The opinion of the court was delivered by: Ross, District Judge.
By complaint filed February 25, 1998, plaintiff Surjumony
Rajcooar initiated this action against defendants Air India
Limited ("Air India") and Heathrow Airport Limited ("Heathrow")
seeking damages on behalf of herself and her late husband for Mr.
Rajcooar's death. By an order and opinion dated April 23, 1999,
this court dismissed Heathrow for want of personal jurisdiction.
Air India now moves for summary judgment, contending that it can
only be held liable to Ms. Rajcooar under the Warsaw
Convention,*fn1 and that under the terms of that treaty, a
factual prerequisite to liability is missing. Ms. Rajcooar argues
that the Warsaw Convention does
not apply under the circumstances of this case. For the reasons
explained below, the court agrees that the Warsaw Convention
applies and, consequently, grants summary judgment to Air India.
The Rajcooars boarded Air India flight 112 at New York's John
F. Kennedy Airport on February 25, 1996 bound for New Delhi via
London Heathrow Airport. They arrived at Heathrow around 9:00
a.m. the following morning and were required to deplane with
their hand baggage for a layover. During that layover, the
Rajcooars and the other passengers continuing to India, known as
transit passengers, were required to remain in the area of
Terminal 3 called the transit lounge. The transit lounge is a
large area, utilized by several airlines and restricted to
passengers who have cleared customs and security checks, either
at Heathrow or at their airport of origin. Transit passengers
hold plastic transit cards that enable them to re-board the
plane. They are not required to check-in again at the gate, but
merely need to present the transit card when the flight is
At some point shortly before flight 112 was to depart Heathrow,
Mr. Rajcooar suffered a heart attack and collapsed. Assistance
was sought from Air India personnel and paramedics were called,
but Mr. Rajcooar died as a result of the heart attack. Ms.
Rajcooar's complaint alleges that Air India employees failed to
provide the necessary medical help in time, and that Mr.
Rajcooar's death was a result of that failure. In her complaint,
Ms. Rajcooar asserted that when Mr. Rajcooar collapsed, he was on
line to board the plane at Gate 26. In a later affidavit,
however, Ms. Rajcooar stated that her husband was in the corridor
near Gate 26, but was not on line. Farok Kapadia, the Flight
Handling Manager for Air India who was at Gate 26 when Mr.
Rajcooar collapsed, confirmed that Mr. Rajcooar was in the
corridor outside Gate 26, but stated that the line extended into
the corridor and that Mr. Rajcooar was on that line.
The Warsaw Convention makes airlines liable up to $75,000 for
injuries arising out of accidents on board airplanes or during
the process of embarking or disembarking. See Warsaw
Convention, Art. 17. The remedy provided by the Warsaw Convention
is the exclusive remedy available from airlines for such
injuries. See El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng,
525 U.S. 155, 161, 119 S.Ct. 662, 668, 142 L.Ed.2d 576 (1999).
Whether an injured passenger was in the process of embarking, and
thus compensable under the Warsaw Convention, is analyzed under a
test developed in Day v. Trans World Airlines, Inc.,
528 F.2d 31 (2d Cir. 1975). Under the test adopted in Day, there are
four factors that a court is to consider: 1) the activity in
which the passenger was engaged when the accident occurred; 2)
the degree of control the airline exercised over the passenger's
actions; 3) the imminence of boarding; and 4) the location in
which the accident occurred. See id. at 33.
In Day itself, the plaintiffs were passengers who had been
injured and representatives of passengers who had been killed in
a terrorist attack in the Athens airport. The Second Circuit
noted that the passengers had already passed through passport
control into an area open exclusively to those departing on
international flights and were assembled at the gate. See id.
The airline had instructed the passengers to form a queue to
undergo a final weapons search, a prerequisite to boarding. See
id. Because they were engaged in an activity required for
boarding, at the direction of the airline and at the departure
gate with boarding imminent, the court concluded that the Warsaw
Convention applied. See id. at 33-34. By contrast, the decedent
in Buonocore v. Trans World Airlines, Inc., 900 F.2d 8 (2d Cir.
1990), was killed by terrorists while in an area of the airport
open to the public while walking
to a snack cart and free to roam or even leave the airport, two
hours before his flight. See id. at 10. The Second Circuit
found that the Warsaw Convention did not apply in Buonocore. See
id. at 11.
The facts in this case fall somewhere between those of Day
and Buonocore. Considering the first factor, the passenger's
activities, the court assumes for the purposes of this motion
that Mr. Rajcooar was proceeding to the departure gate when he
suffered his heart attack.*fn2 Like the plaintiffs in Day, he
had already completed virtually all of the steps required to
board the flight, needing only to surrender his transit pass and
walk up the jetway. The control factor is not as strong as it was
in Day, as Mr. Rajcooar was not operating under specific
instructions of the airline. As in Jefferies v. Trans World
Airlines, Inc., 1987 WL 8168 at *4 (N.D.Ill. 1987), however, Mr.
Rajcooar was preparing to perform acts implicitly required of him
by the airline. When his heart attack struck, Mr. Rajcooar was
reporting to the departure gate as Air India told him to do.
Although he was not acting under the explicit control of the
defendant, he risked missing his plane if he strayed far from the
Moreover, the other two factors, on balance, also point towards
application of the Warsaw Convention. Even if Mr. Rajcooar was
not yet on line, the evidence introduced with this motion
suggests that departure was imminent. Mr. Kapadia stated that a
boarding call had been made and that passengers had already begun
to queue. See Kapadia Aff. ¶ 14. There is no genuine issue as
to this fact. Ms. Rajcooar stated of the timing of her husband's
heart attack: "I believe it was prior to the time that any
passengers had yet begun to check in at gate 26 for the flight to
India." Rajcooar Aff. at 2 (unnumbered). This qualified,
conclusory statement is insufficient to create a genuine issue of
fact. In addition, the incident occurred immediately outside the
gate from which Mr. Rajcooar's flight was departing. Although the
location was not controlled exclusively by the airline, as in
Alleyn v. Port Authority of New York, 58 F. Supp.2d 15, 17
(E.D.N.Y. 1999) (finding the Warsaw Convention to apply), it was
a part of the airport accessible only to passengers on
international flights, as in Day, 528 F.2d at 33.
The determination of the applicability of the Warsaw Convention
is fact-specific, to be undertaken on a case-by-case basis. See
Alleyn, 58 F. Supp.2d at 20. A review of other cases convinces
the court that these facts warrant application of the Warsaw
Convention. The most similar case is Jefferies. In that case,
the plaintiff slipped while joining a line approximately twelve
feet from the departure gate at, coincidentally, Heathrow
Airport. See Jefferies, 1987 WL 8168 at *4. Like Mr. Rajcooar,
she was in a restricted location and was "not free to leave the
terminal or wander its environs without the risk of losing her
flight." Id. "Her activity at the time of the accident was
solely related to the departing flight." Id. The court in
Jefferies thus concluded that she was in the process of
embarking, notwithstanding the fact that she was not acting under
the explicit direction of the airline and was outside the gate
area. See id. at *5. By contrast, plaintiffs in cases in which
the Warsaw Convention has not been applied
were significantly removed from the boarding process. See
Buonocore, 900 F.2d at 10; Schmidkunz v. Scandinavian Airlines
System, 628 F.2d 1205, 1207 (9th Cir. 1980) (plaintiff was at
least 500 yards from the gate, had not yet received a boarding
pass, was not imminently preparing to board the plane, and was
not under the direction of airline personnel); Rolnick v. El Al
Israel Airlines, Ltd., 551 F. Supp. 261, 262-63 (E.D.N.Y. 1982)
(plaintiffs fell on an escalator in publicly accessible part of
airport before obtaining boarding passes or clearing passport
control); Upton v. Iran National Airlines Corp., 450 F. Supp. 176,
178 (S.D.N.Y. 1978) (roof collapsed on plaintiff while
awaiting delayed flight in public waiting area prior to
proceeding through customs, passport control, or security check).
Mr. Rajcooar was only one step removed from stepping onto the
plane and was approaching the gate in order to complete that last
step. The flight was departing shortly and he was not free to
engage in any pursuits of his own choosing except at risk of
missing his plane. He was located in the transit lounge, a
restricted area, and was near gate 26 because Air India required
him to be there. Under these circumstances, even if Mr. Rajcooar
was not yet on the line forming to re-board the Air India flight,
the Warsaw Convention governs.
Having concluded that the Warsaw Convention applies, summary
judgment for the defendant is appropriate because Mr. Rajcooar's
death was not the result of an "accident" under Article 17. The
Supreme Court has defined an "accident" as "an unexpected or
unusual event or happening that is external to the passenger."
Air France v. Saks, 470 U.S. 392, 405, 105 S.Ct. 1338, 1345, 84
L.Ed.2d 289 (1985). A heart attack does not meet that definition,
as it is not external to the passenger. See Tandon v. United Air
Lines, 926 F. Supp. 366 (S.D.N.Y. 1996); Fischer v. Northwest
Airlines, 623 F. Supp. 1064 (N.D.Ill. 1985). Nor does allegedly
inadequate medical care without some showing of unexpected
circumstances. See Krys v. Lufthansa German Airlines,
119 F.3d 1515, 1520 (11th Cir. 1997) ("In the absence of proof of abnormal
external factors, aggravation of a pre-existing injury during the
course of a routine and normal flight should not be considered an
`accident' within the meaning of Article 17."). Ms. Rajcooar has
not argued in this motion that she is entitled to recovery under
the Warsaw Convention and the court concludes that she is not.
For the reasons explained herein, summary judgment is granted
in favor of the defendant and the plaintiff's complaint is
dismissed. The Clerk of the Court is ...