Mexico at the time of this accident assuredly would not have
disregarded a treaty that Mexico had adopted in favor of some
generalized notion of "dol" or "dolo" that had been abrogated in
that treaty. Instead, the court would have applied the Hague
Protocol's revised formulation of the circumstances in which a
carrier's limited liability is lifted, which allows for recovery
without limitation not only for acts or omissions to act that
are done with intent to cause damage or injury, but also for
reckless acts or omissions with knowledge of the probable
consequences. Since the applicable rule that would be applied in
New York and Mexico does not differ materially, a New York court
would not defer to Mexican law.
In addition, even if Mexican law were different from that of
New York, it is likely that a New York court would apply New
York law. Although plaintiff and defendant do not share a common
domicile, a New York court would consider it significant that
the law of both plaintiffs and defendant's domiciles is the same
and is the same as New York's (or, at least, American does not
contest that they are the same). Where the law of the domiciles
of plaintiff and defendant are the same, and the accident occurs
in a third state, the common law of the domiciles of the parties
is applied if the ride is one of loss allocation. Tkaczevski v.
Ryder Truck Rental, Inc., 22 F. Supp.2d 169, 173-74 (S.D.N.Y.
1998). "Under New York's choice of law rules, when conflicting
rules concern the allocation of loss rather than the regulation
of conduct, the locus jurisdiction has at best a minimal
interest in determining the right of recovery or the extent of
the remedy." Pescatore v. Pan American World Airways, Inc.,
97 F.3d 1, 13 (2d Cir. 1996) (internal quotation marks omitted)
(declining to apply Scottish law to determine whether damages
for loss of society and grief were available to Ohio plaintiff
in Lockerbie disaster). New York includes among its
loss-allocation rules "those limiting damages in wrongful death
actions." Schultz, 65 N.Y.2d at 198, 491 N.Y.S.2d 90,
480 N.E.2d 679; see Barkanic v. General Administration of Civil
Aviation, 923 F.2d 957, 962-63 (2d Cir. 1991) (Chinese
limitation on liability for wrongful death applied as a loss
distribution rule under New York law).
Here, the limitation of damages is based upon the type of
conduct involved, i.e., the limit is not available where the
conduct is wilful. Brink's expressly declined to decide
whether a New York court would treat the provision for
limitation of liability in Article 25 as a conduct regulating
rule or a loss allocation rule. 93 F.3d at 1031. At best, for
American, it is a hybrid of loss allocation and conduct
regulation. On the facts of this case, Mexico has little
apparent interest in limiting the amount of damages that a New
Jersey citizen can recover from a Texas-based airline for
conduct that gives rise to the carrier's liability under the law
applicable in both Mexico and the United States. Cf. Schultz,
65 N.Y.2d at 201, 491 N.Y.S.2d 90, 480 N.E.2d 679 (New York does
not have a significant interest in applying its own law to a
dispute among New Jersey domiciliaries as to whether recovery
for admittedly wrongful conduct was precluded by New Jersey's
charitable immunity statute); Curley, 153 F.3d at 12-16
(applying Mexican law in non-Warsaw Convention case, under New
York choice of law rules, to determine that pilot's conduct in
reporting criminal activity to Mexican authorities in Mexico was
proper under Mexican law).
Under New York law, there are issues of fact for trial that
require denial of American's motion for summary judgment.
Although the testimony is conflicting, a reasonable jury could
find that wilful misconduct occurred when the evidence is viewed
most favorably to plaintiff. The mobile lounge was equipped with
security bar which was routinely used and that would have
prevented the accident, but the driver intentionally decided not
to put it in place. The driver contradicted himself, but
admitted in some portions of his testimony that he was aware of
the risk that a passenger could fall from a crowded mobile
lounge while it was moving if he failed to put the bar in place,
and that he was specifically aware of the danger to Mr.
D'Alessandro. The driver further admitted that he knew it was
dangerous to drive the mobile lounge while passengers stood by
the door without having first secured the bar. The driver said
that he nevertheless proceeded because American's representative
told him the flight would be delayed unless he left, testimony
which was disputed by the representative but which the court
must take as provable for purposes of the motion. Two passengers
state in affidavits that the lounge was very crowded and that it
was driven erratically and made sudden stops that caused
passengers to fall against each other. The driver was unlicensed
and had never received training in operation of a mobile lounge.
Accordingly, there are genuine factual issues as to whether
"wilful misconduct" occurred.
Proof of Lost Earnings
American's motion to preclude plaintiff from offering evidence
of lost earnings, or alternatively, to bar the testimony of
Michael J. Corey on that subject, is denied for the reasons
stated on the record of oral argument. Despite the evidence
presented by defendant indicating that Mr. D'Alessandro's
superiors at Alexander and Alexander Services, Inc. would have
terminated his employment and held him responsible for financial
irregularities that came to light shortly before the accident,
there are issues of fact as to whether that action would have
been permissible under his written employment agreement.
Moreover, his ability to earn substantial income elsewhere is
not "speculative" in light of the evidence in the record of his
extraordinary abilities as a human resources management
consultant and his workaholic disposition. As I ruled during the
oral argument, American may take Mr. Corey's deposition if it
has not done so already, and any further objections to his
testimony or additional arguments to exclude or limit other
evidence on damages issues are reserved for the time of trial.
If any further discovery on damages issues is sought, disputes
should be presented to Magistrate Judge Pollak.
Defendant's motion for partial summary judgment is denied.
Defendant's motion in limine to preclude evidence of lost
earnings or the testimony of Michael J. Core on that subject is
denied without prejudice to raising further objections to such
testimony at trial.