The opinion of the court was delivered by: Buchwald, District Judge.
Plaintiff John J. Magan brings suit against defendant Lufthansa German
Airlines ("Lufthansa") for damages arising out of an incident aboard a
Lufthansa jet bound from Munich, Germany, to Sofia, Bulgaria. Lufthansa
moves for summary judgment on the grounds that the incident did not
constitute an "accident" within the meaning of Article 17 of the Warsaw
Convention. For the reasons that follow, the motion is granted.
On March 27, 1999, Mr. Magan was aboard Lufthansa flight #5318 from
Munich to Sofia on a British Aerospace Avro 146, an eighty-seat jet
airplane (the "Avro 146"). The Avro 146 is known as a "high wing"
aircraft because its wings are mounted across the top of the fuselage.
One consequence of this design is that the cabin ceiling height is lower
in that portion of the cabin where the wings come over the top. Thus,
while the ceiling height above the aisle is generally about 70" high,
this "center tank" reduces the ceiling height to about 6'3" and runs from
approximately the fifth to eighth rows. Deposition of Captain Brend
Melcher at 75-76.
On the flight in question, Mr. Magan was seated in row 7, underneath
the wing. Deposition of John J. Magan at 38. After eating the on-board
meal, Mr. Magan rose from his seat and walked to the lavatory, located in
the front of the aircraft, next to the pilot's cabin. While he was
there, the captain made an announcement that the plane was going to enter
an area with slight turbulence and instructed the passengers to return to
their seats and fasten their seat belts. Mr. Magan heard this
announcement, finished up in the lavatory, and proceeded back to his
seat. As he was making his way back to his seat, the plane experienced
some turbulence, and Mr. Magan "us[ed] the backs of the passenger seats
to negotiate [his] way" back to his seat. Magan Dep. at 42-43. En route,
however, Mr. Magan, who is 6'4", bumped his head into the center tank and
may have lost consciousness. He suffered injuries to his face and head,
and also claims to suffer from "cluster headaches" as a result of this
collision. Mr. Magan brought suit against Lufthansa, the owner and
operator of the Avro 146, for damages arising out of this incident.
A. Summary Judgment Standard
Summary judgment is properly granted "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to material
fact and that the moving party is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(c). Summary judgment must
be entered "against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party's case, and
on which that party will bear the burden of proof at trial." Celotex
Corp. v. Catrett, 477 U.S. 817, 822, 106 S.Ct. 2548, 91 L.Ed.2d 265
In reviewing the record, we must assess the evidence "in the light most
favorable to the non-movant and . . . draw all reasonable inferences in
his favor." Delaware & Hudson Ry. Co. v. Consolidated Rail Corp.,
902 F.2d 174, 177 (2d Cir. 1990). The mere existence, however, of an
alleged factual dispute between the parties will not defeat a motion for
summary judgment. Rather, the non-moving party must affirmatively set
forth facts showing that there is a genuine issue for trial. Anderson
Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202
1986). An issue is "genuine" "if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party." Id. at 248, 106
S.Ct. 2505 (internal quotation omitted). Finally, we observe that summary
judgment "is properly regarded not as a disfavored procedural shortcut,
but rather as an integral part of the Federal Rules as a whole, which are
designed `to secure the just, speedy and inexpensive determination of
every action.'" Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir.
1986) (quoting Fed.R.Civ.P. 1).
The parties and the Court agree that this dispute is governed by the
Convention for the Unification of Certain Rules Relating to International
Transportation by Air, concluded at Warsaw, Poland, October 12, 1929, 49
Stat. 3000, 1934 WL 29042 (1984), as modified by Montreal Protocol No.
4, S.P. Exec. Rep. No. 105-20 (1998) (collectively, the "Warsaw
Convention").*fn1 Def's Mem. at 7; Pl's Mem. at 8. There is also no
dispute that the Warsaw Convention is plaintiffs sole remedy for any
injuries sustained aboard the Avro 146. Def's Mem. at 7; Pl's Mem. at 8.
See Warsaw Convention Art. 24; El Al Israel Airlines, Ltd. v. Tseng,
525 U.S. 155, 160-61, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999). In other
words if plaintiffs injury is not compensable under the Warsaw
Convention, he "will have no recourse to an alternative remedy." Tseng,
525 U.S. at 160-61, 119 S.Ct. 662.
Article 17 of the Warsaw 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 the course of any of
the operations of embarking or disembarking.
Thus, Lufthansa may be liable to Mr. Magan only if he establishes that
the incident that. caused his injuries was an "accident" within the
meaning of Article 17. Air France v. Saks, 470 U.S. 892, 396, 105 S.Ct.
1888, 84 L.Ed.2d 289 (1985). This is a question of law. Id. at 406, 105
S.Ct. 1888 ...