Airline’s summary judgment motion under the Warsaw Convention denied because passenger had not been “embarking”

Dick v. American Airlines, Inc. (D. Mass. Mar. 12, 2007).  The international travel itinerary of the plaintiff and her elderly mother, who required wheelchair assistance, included a connecting flight at Miami International Airport.  American provided (through a contractor) a wheelchair escort to assist the plaintiff’s mother in getting from the arrival gate to the departure gate.  The escort directed that they use the escalator because the elevator was out of service.  While riding the escalator, the plaintiff’s mother fell backward and injured the plaintiff.

Over two years after the incident, the plaintiff brought a lawsuit alleging a state law cause of action for negligence against American.  American moved for summary judgment on the grounds that the plaintiff’s state law cause of action was preempted by the Warsaw Convention and barred by its “two-year statute of limitations.”  (The incident occurred in 2002, which is why American cited the Warsaw Convention, rather than its successor, the Montreal Convention.)

Article 17 of the Warsaw Convention provides the remedy for a passenger’s personal injury, but it only applies when an “accident” took place on the aircraft “or in the course of any of the operations of embarking or disembarking.”  The court ruled that because the plaintiff “was not sufficiently close in either space or time to the actual physical activity of getting on the aircraft,” she had not been involved in “any of the operations of embarking” when the escalator incident occurred.  Accordingly, the court held that the Convention did not apply and denied American’s motion.

Note:  The court characterized the Warsaw Convention’s requirement that suit be filed within two years as a statute of limitation, but that requirement is really a condition precedent, as the Second Circuit correctly held in Fishman v. Delta Air Lines, Inc.  This is a critical distinction because statutes of limitation are subject to tolling due to infancy and other reasons but conditions precedent are not subject to tolling.  The two-year filing condition precedent is in Article 29 of the Warsaw Convention and in Article 35 of the Montreal Convention.

Airline obtains summary judgment in offended passenger case

Maduro v. American Airlines, Inc. (Virgin Islands Super. Feb. 26, 2007).  During a layover in Puerto Rico, the passenger approached American’s ticket counter to verify her connecting flight to the Virgin Islands.  The ticket agent supposedly refused to return the passenger’s ticket and told her “to shut up and take a seat” and that she might not be scheduled to travel on any flight that day.

The passenger sued American, alleging claims under Virgin Island territorial law for negligence, breach of an implied contractual duty to ensure that employees “conduct themselves in a professional manner” and discrimination.  The passenger’s claims seemed to focus solely on her alleged emotional distress from being treated rudely; the opinion does not indicate that the agent’s conduct caused the passenger to miss her flight or suffer any other more tangible injury.  American moved for summary judgment on the grounds that the Warsaw Convention preempted the passenger’s territorial law claims, that the Convention bars recovery for claims for purely emotional injuries (which is true) and that the passenger’s territorial law claims failed because she did not allege any physical injury or sufficient abusive conduct.

Article 17 of the Convention provides the remedy for a passenger’s personal injury, but it only applies when an “accident” took place on the aircraft “or in the course of any of the operations of embarking or disembarking.”  The court ruled that the Convention did not apply because the incident at issue took place at the ticket counter, which was within the terminal and far from her arrival and departure gates, which meant that the passenger was not even close to embarking or disembarking.  But territorial law ended up saving the airline anyway; the court held that the passenger had failed to state sufficient facts to make out claims for negligence, breach of implied contractual duties or discrimination under territorial law.

The Warsaw Convention, not the Montreal Convention, was analyzed in this case because the incident in question took place way back in 1996.  However, the result would have been the same had the Montreal Convention been at issue, as the Article 17 “embarking or disembarking” language is the same in both Conventions.  Justice appears to move slowly in the territories; eight years elapsed between the time this case was filed and American moved for summary judgment.

Passenger’s backpack beaning lawsuit survives airline’s motion to dismiss

Kruger v. United Airlines, Inc. (N.D. Cal. Mar. 1, 2007).  While waiting on a jetway to board a flight departing from San Francisco, the passenger was inadvertently struck on the head by a backpack swung by another boarding passenger.  The passenger was able to board but became “dazed and nauseated” during the flight due to the backpack incident.

The passenger sued United, alleging state common law causes of action for negligence, negligent training and supervision of employees and negligent infliction of emotional distress; her husband also sued the airline, alleging loss of consortium.  United moved to dismiss the complaint on the grounds that the plaintiffs’ claims were preempted by the Montreal Convention.

The court held that the Convention did preempt the passenger’s state common law tort causes of action but that she had stated sufficient facts to plead a cause of action under Article 17 of the Convention by alleging “bodily injury” (in-flight nausea) that had been caused by an “accident” (the backpack incident) during the course of embarking.  The court also held that (i) the passenger’s husband’s loss of consortium claim was cognizable under the Convention because California law permits such claims, (ii) the plaintiffs’ punitive damages claim was not cognizable because the Convention does not permit recovery of punitive damages, and (iii) the plaintiffs’ emotional distress claim was limited by the Convention to those distress claims arising from the passenger’s physical injuries.

Update:  As reported here, on November 1, 2007, the court granted United’s motion for summary judgment in this case.

Dog dies after flight but owner’s lawsuit survives airline’s summary judgment motion

Ing v. American Airlines (N.D. Cal. Feb. 5, 2007).  Willie, “a young English Bulldog,” was shipped in a kennel in the cargo compartment of a flight from JFK to San Francisco in August 2005.  Upon arrival, Willie was sick and his owner requested that he be allowed to take Willie to a veterinarian.  American refused to release Willie to his owner and the dog died several hours later, while still in the airline’s custody.

Willie’s owner sued the airline, alleging causes of action for negligence, gross negligence, trespass to chattel, conversion, intentional infliction of emotional distress, breach of bailment contract, breach of contract and violations of certain California statutes.  American moved for summary judgment on the grounds that the owner’s state tort and statutory claims were preempted and that its contract liability was limited to $50 by the air waybill.

The court held that the federal Airline Deregulation Act and federal common law preempted the owner’s state tort and statutory causes of action but only with respect to the period of time the dog was being shipped.  As to the owner’s contract causes of action, the court held that the air waybill’s $50 limitation of liability governed unless a jury were to find that American breached the air waybill through conduct rising to the level of intentional destruction or theft of the dog.  The court held that because a jury could reasonably conclude that American did engage in such conduct by refusing to release the ailing dog to his owner upon request, summary judgment was not proper.

Finally, the court held that once the owner requested that the airline release the dog, a reasonable jury could conclude that “American’s conduct after the flight landed was a separate incident unrelated to shipping the dog.”  Accordingly, the court denied the airline’s summary judgment motion to the extent it applied to the owner’s post-shipping claims.