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October 29, 2001


The opinion of the court was delivered by: VICTOR Marrero, U.S. District Judge.


Plaintiffs Joseph Fulop (Fulop) and Wanda Phillips ("Phillips") instituted this action under the Warsaw Convention to recover damages for injuries Fulop allegedly sustained aboard an international flight operated by defendant Malev Hungarian Airlines ("Malev"). Malev moves for summary judgment, pursuant to Fed. R. Civ. P. 56, arguing that Fulop's injuries were not caused by an "accident" within the meaning of Article 17 of the Warsaw Convention and that Fulop's claim of willful misconduct does not state a cause of action separate from his Article 17 claim. The Court, having reviewed and considered the parties' submissions and oral arguments, grants the motion in pars and denies the motion in part.


On March 18, 1998, Fulop was a passenger with Phillips, his wife, aboard Malev flight number 90 traveling from Budapest to JFK Airport ("JFK") in New York (the "Flight"). Shortly after takeoff, Fulop began experiencing chest pains similar to those he had experienced during a heart attack he suffered in 1994. Fulop took nitroglycerin in an attempt to alleviate the pain.

When the pain persisted, Fulop requested assistance from Malev flight attendants and asked them if a physician was on the plane. An announcement was made to see if a physician was aboard the plane who could examine Fulop. A passenger who was a doctor responded and examined Fulop, who had moved and was then lying in a row of empty seats toward the back of the plane.

Malev claims that its chief purser discussed with Fulop and the treating physician the possibility of diverting the Flight to land at an airport in Europe and that the doctor advised that Fulop's pulse was fine and that he did not know whether an immediate landing was necessary. See Defendant's 56.1 Statement, dated Mar. 6, 2001, ¶¶ 12, 14. In contrast, Fulop claims that he requested a diversion to England (see Compl., ¶¶ 13, 15; Plaintiffs' Memorandum in Opposition, dated Mar. 29, 2001 ("Plaintiffs' Memo"), at 5), but also claims that he only asked a flight attendant if the plane could land in England. See Plaintiffs' 56.1 Statement, dated Mar. 29, 2001, ¶ 6; Transcript from Fulop Deposition, dated Jan. 9, 2001, at 31.

The Flight was not diverted and landed at JFK. Malev personnel arranged for an ambulance to meet the aircraft upon its arrival. Paramedics examined Fulop after the Flight landed and took Fulop to Mary Immaculate Hospital. Fulop was transferred to Long Island Jewish Medical Center two days later where he underwent triple bypass surgery. Fulop now claims that his "permanent damage would not have occurred had Malev diverted the Flight to allow Mr. Fulop to receive appropriate treatment within the first several hours following the onset of his heart attack." Compl., ¶ 21.



A motion for summary judgment may be granted only if there is no genuine issue as to any material fact and the moving party is therefore entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1936); Fed. R. Civ. P. 56. The role of the Court is to determine whether there are any genuine issues of material fact to be tried, not to decide them (see Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994)), while resolving ambiguities and drawing all reasonable inferences in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

The moving party bears the initial burden and is required to identify those portions of the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, [that] show that there is no genuine issue as to any material fact." Fed. R. Civ. P. 56(c). The party opposing the motion must then demonstrate — without relying solely on pleadings or conclusory factual allegations — that there exists a genuine dispute as to any material fact. See Celotex, 477 U.S. at 324. The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 506 (1986). Instead, the opposing party must present specific evidence supporting its contention that there is a genuine issue of material fact. See Celotex, 477 U.S. at 324.

Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by [his] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)). To show such a genuine dispute, the opposing party must proffer sufficient evidence to allow a reasonable jury to return a verdict in its favor. See Anderson, 477 U.S. at 248.


This case involves the meaning and usage of the common word "accident" in an uncommon sense. Ordinary as the term is, as defined and applied in the context of the Warsaw Convention,*fn1 it has engendered extensive debate and varying, sometimes contradictory court decisions. Not the least of this disaccord may be ascribed to interpretation of an international treaty whose original text is in a language other than English. However, as the United States Supreme Court noted in Saks v. Air France,*fn2 the legal meaning of the term in French, the language in which the original text of the Warsaw Convention was drafted, does not differ materially from the usage of the term in the United States, Great Britain or Germany.

One layer of complication to achieving broader consensus on the legal scope of the term arises because "accident" may mean the cause of an occurrence in one sense of the word, and in another, may connote the consequential injury itself.*fn3 As the Supreme Court observed:

The word `accident' is not a technical legal term with a clearly defined meaning. Speaking generally, but with reference to legal liabilities, an accident means any unintended and unexpected occurrence which produces hurt or loss. But it is often used to denote any unintended and unexpected loss or hurt apart from its cause; and if the cause is not known the loss or hurt itself would certainly be called an accident. The word `accident' is also often used to denote both the cause and the effect, no attempt being made to discriminate between them.*fn4

Underscoring the distinction between "accident" as cause and effect, the Saks Court promulgated a definition of "accident" for purposes of Warsaw Convention cases. The Supreme Court declared that the intent is to encompass the cause of an injury, rather than solely the injury or occurrence by itself, and that for Warsaw Convention liability to arise, the injury a passenger suffers on account of an accident must be "caused by an unexpected or unusual event or happening that is external to the passenger."*fn5

Yet, despite the Supreme Court's endeavor to clarify the meaning of the term, to say that the results are far from clear would be an understatement. In the aftermath of Saks, disputes between passengers and airlines about events they respectively characterize as accidents have turned on their head the diametric positions each side previously advocated in cases involving similar injuries. Moreover, outcomes in some decisions ascribe to the concept of "accident" a counterintuitive meaning.

For example, in actions such as the one now before this Court involving heart attacks and other serious medical conditions travelers have suffered aboard aircraft, the litigating passengers — to escape application of the Convention's limitations on airline liability for covered damages — traditionally argued that the events producing the alleged injuries could not be classified as accidents.*fn6 Conversely, the airlines, to invoke the Warsaw Convention's limitations, have argued that the very same kinds of injuries constituted accidents and thus fell within the scope of the Convention's restricted ability.*fn7

More recently, following the United States Supreme Court's decision in El Al Israel Airlines, Ltd. v. Tseng,*fn8 which held that the Warsaw Convention provides passengers the exclusive means of recovery for covered injuries and thus precludes relief for causes of action brought under state common law, the tables turned. The opposing sides then scrambled to redefine their respective positions. They switched sides and ended up advocating countervailing views on the meaning of an "accident" from the semantic corner the other had previously occupied.

As in the case at hand, passengers instituting similar claims now assert that their injuries stemming from medical conditions aggravated by occurrences during flight comprise accidents within the meaning of the Warsaw Convention. On the other hand, the carriers, which once maintained that these occurrences constituted accidents, now contend — to avoid liability altogether — that those types of injuries cannot be deemed to have been caused by accidents for which they may be held liable.*fn9 As further discussed below, the outcomes in these cases are divided. Some courts have held that the occurrences which caused the injuries may be classified as accidents, while others have concluded otherwise.

Similarly conflicting results are recorded in cases involving passenger-on-passenger assaults. A jury in one case, for instance, probably reflecting the common understanding of "accident" as an unintended occurrence, determined that a physical assault by one passenger against another was not an accident,*fn10 though airline personnel had been apprised of the attacker's already expressed aggression and had attempted to intervene. On similar fact patterns, courts have decided that certain passenger-on-passenger attacks may be considered accidents, even when the airline personnel had no awareness of the assault and little or no role in it and perhaps only limited ability to prevent it.*fn11

Oddly prominent within this maze of perplexities, in another category of cases, the courts generally hold that the most deliberate of all acts of aviation injuries — criminal violence, including bombings and even murder, committed by hijackers or terrorists — constitute Warsaw Convention accidents" that entitle harmed passengers to hold the airlines liable.*fn12 But alleged negligent actions or complete inaction by airline personnel that have had the effect of aggravating a heart attack or other physical ailment from which the passenger then suffers more severe injuries or dies have not been deemed "accidents" covered by the Convention.*fn13

This judicial disarray and the anomalies it has engendered serve as the context in which this Court is now called upon to consider anew an issue already exhaustively treated in other cases and to decide whether a basis exists entitling Fulop to hold Malev liable for injuries aggravated as a result of the heart attack he suffered while on board the Flight.

Resolution of this action ordinarily should be a rather straightforward and easy matter. The precise dispute presented here has been dealt with in other cases. Courts in several circuits, including two district courts in the Second Circuit, have concluded, under fact patterns similar to the one in this action, that a passenger's injuries arising from the effects of a heart attack or other illness suffered during a flight and the airline crew's failure to respond with adequate medical assistance, did not arise from an accident within the meaning of the Saks definition, and thus that the passengers were not entitled to recover from the carriers under the Warsaw Convention.*fn14

The weight of that authority would suggest no need to tarry any longer in the bewilderment of what events qualify as accidents under the Convention. But this judge has learned, even on the experience of a relatively brief time on the bench, that there are no slam dunks in the law. Consequently, the Court considers it necessary to treat the issues more extensively.

The backdrop supplied above, in addition to permitting a fuller understanding of the issues in context, may assist in confirming that in fact the underlying issue is by far not free from doubt and that substantial latitude for reasonable differences of opinion still exists. Within this fair ground for disagreement, this Court feels compelled to diverge from significant authority because it finds circumstances that distinguish earlier precedent from the case before it, as well as other reasons it deems sufficient to warrant a departure from relevant case law.


Article 17 of the Warsaw Convention describes the circumstances under which air carriers may be held liable for injuries to passengers occurring in the course of international travel. It provides that

[t]he 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.*fn15

In defining "accident" as an unexpected or unusual event or happening external to the passenger, the Saks Court instructed that this definition "should be applied flexibly after an assessment of all the ...

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