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MARKS v. VIRGIN ATLANTIC AIRWAYS LIMITED

United States District Court, S.D. New York


July 13, 2004.

ILANIT MARKS and SAUL MARKS, Plaintiffs,
v.
VIRGIN ATLANTIC AIRWAYS LIMITED, Defendant.

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge

OPINION AND ORDER

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.

  I. BACKGROUND

  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.

  II. LEGAL STANDARD

  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

  III. DISCUSSION

  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 summary judgment with regard to these alleged psychological injuries.*fn32 This argument is therefore entirely beside the point.

  Second, in an apparent attempt to sidestep the limited recovery afforded under the Convention, plaintiffs argue that New York law allows recovery for the type of mental injuries suffered by Ilanit Marks.*fn33 But because the Convention governs the dispute, not New York law, this argument is unavailing. Moreover, this argument was specifically rejected in Ehrlich.*fn34 Under the Convention, the threshold issue is whether Virgin Atlantic is liable at all.*fn35 Only after establishing such liability would damages be determined under the controlling state law.*fn36

  IV. CONCLUSION

  For the foregoing reasons, Virgin Atlantic's motion for partial summary judgment is granted. The Clerk of the Court is directed to close this motion [#9 on the docket sheet]. A conference is scheduled at July 23, 2004, at 4:30 p.m. in Courtroom 15C.

  SO ORDERED.


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