The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge
Ilanit Marks and Saul Marks, husband and wife, collectively
bring this action against Virgin Atlantic Airways Limited
("Virgin Atlantic") under the international treaty commonly known
as the Warsaw Convention.*fn1 The suit arises out of an
incident that occurred on a Virgin Atlantic flight in which
Ilanit Marks, who was pregnant at the time, tripped and fell in
the aisle of the aircraft. Plaintiffs seek damages for
psychological injuries that Ilanit Marks allegedly suffered due
to her concern about the health of her unborn child. Virgin
Atlantic now moves for partial summary judgment pursuant to Federal Rule of Civil
Procedure 56, arguing that such injuries are not compensable as a
matter of law. For the reasons set forth below, Virgin Atlantic's
motion is granted.
Ilanit and Saul Marks allege the following facts. On or about
June 21, 2002, Ilanit Marks was four-and-one-half months
pregnant, when she and her husband were passengers on a Virgin
Atlantic flight from New York to London.*fn2 During the
flight, Ilanit Marks left her seat to get some water at the
flight attendants' station.*fn3 After she got the water, Ms.
Marks turned to walk back to her seat.*fn4 As she stepped
forward, she tripped over a bag protruding in the aisle and fell
face first to the floor.*fn5 As a result of this fall, Ms.
Marks claims that she injured her leg, arm, hip, back, and
"tummy."*fn6 Ms. Marks and the unborn child were subsequently examined both in the United Kingdom and the
United States and Ms. Marks was informed that the child was
healthy and uninjured.*fn7
Plaintiffs are seeking compensation for the psychological
injuries that Ilanit Marks allegedly suffered as a result of (1)
her own physical injuries and (2) the uncertainty of the health
of her unborn child.*fn8 Virgin Atlantic's motion is only
directed to the latter.
A. Summary Judgment Standard
Summary judgment is permissible "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
any material fact and that the moving party is entitled to
judgment as a matter of law."*fn9 "An issue of fact is
genuine `if the evidence is such that a jury could return a
verdict for the nonmoving party.'"*fn10 A fact is material
when "it `might affect the outcome of the suit under the governing law.'"*fn11
The party seeking summary judgment has the burden of
demonstrating that no genuine issue of material fact
exists.*fn12 In turn, to defeat a motion for summary
judgment, the non-moving party must raise a genuine issue of
material fact. To do so, it "`must do more than simply show that
there is some metaphysical doubt as to the material
facts,'"*fn13 and it "`may not rely on conclusory
allegations or unsubstantiated speculation.'"*fn14 Rather,
the non-moving party must produce admissible evidence that
supports its pleadings.*fn15 In this regard, "[t]he `mere
existence of a scintilla of evidence' supporting the non-movant's
case is also insufficient to defeat summary judgment."*fn16 In determining whether a genuine issue of material fact exists,
the court must construe the evidence in the light most favorable
to the non-moving party and draw all inferences in that party's
favor.*fn17 Accordingly, the court's task is not to "weigh
the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial."*fn18
Summary judgment is therefore inappropriate "if there is any
evidence in the record that could reasonably support a jury's
verdict for the non-moving party."*fn19
B. Recovery for Mental Injuries Under the Warsaw
Convention*fn20
Article 17 of the Warsaw Convention governs the liability of
air carriers for harm to passengers on international
flights.*fn21 Under the Convention, a court will not
consider whether the passenger is entitled to recover for mental injuries unless that passenger has demonstrated physical
injuries.*fn22 Once such physical injury is established,
recovery for mental injuries is permitted but "only to the extent
that they flow from bodily injuries."*fn23 Thus, mental
injuries "sustained in the same situation or circumstance as a
bodily injury where the former [have] not been caused by the
latter" are not recoverable.*fn24
Virgin Atlantic asserts that because Ilanit Marks's alleged
mental injuries namely, her concern as to the health of her
unborn child were not caused by her alleged physical injuries,
those injuries are not compensable under the
Convention.*fn25 I agree. The Markses set forth no evidence
demonstrating that Ms. Marks's alleged mental injuries were
caused by any physical injuries, except for the single,
unsubstantiated assertion that Ms. Marks hurt her
"tummy."*fn26 This contention is insufficient to defeat
partial summary judgment for at least two reasons. First, the
Report prepared on the day of the incident states only that Ms. Marks suffered bruising to her knee and was concerned about her
unborn child.*fn27 There is no mention of any stomach
injury.*fn28 Second, after the aircraft landed, a doctor
examined Ms. Marks and told her that the baby's heartbeat was
fine and released her.*fn29 Upon returning to the United
States, Ms. Marks's gynecologist also told her that "everything
was fine."*fn30 Thus, Ms. Marks's conclusory allegation of a
stomach injury is insufficient for a reasonable juror to find
that her alleged mental injuries were caused by a physical
injury.
Plaintiffs, however, make two additional arguments in an
attempt to defeat partial summary judgment. First, plaintiffs
argue that because Ilanit Marks "was unable to undergo diagnostic
testing for over than [sic] four and one-half months because she
was pregnant," she "suffered psychologically because of her
uncertainty as to the nature and source of her own physical
injury."*fn31 But Virgin Atlantic is not seeking ...