Abramson v. Japan Airlines Co., Ltd.

• Court: U.S. Court of Appeals — Third Circuit
• Writing for the Court: Before GARTH and SLOVITER, Circuit Judges, and NEAHER; SLOVITER
• Citation: Abramson v. Japan Airlines Co., Ltd., 739 F.2d 130 (3rd Cir. 1984)
• Decision Date: 22 May 1984
• Docket Number: No. 83-5750,83-5750
• Parties: Stanley ABRAMSON, Appellant, v. JAPAN AIRLINES CO., LTD. . Submitted Under Third Circuit Rule 12(6)

Page 130

739 F.2d 130

Stanley ABRAMSON, Appellant, v. JAPAN AIRLINES CO., LTD.

No. 83-5750.

United States Court of Appeals Third Circuit.

Submitted Under Third Circuit Rule 12(6)

May 22, 1984.

Decided July 19, 1984.

Rehearing Denied Sept. 14, 1984.

Bruce D. Meller, Lawrence A. Levey, Peckar & Abramson, Hackensack, N.J., for appellant.

Condon & Forsyth, New York City, Robert P. Gorman, Durand, Gorman, Heher, Imbriaco & Lynes, Newark, N.J. and Princeton, N.J., for appellee.

Before GARTH and SLOVITER, Circuit Judges, and NEAHER, District Judge. ^*

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I. Facts and Procedural History

Stanley Abramson, plaintiff in the district court, appeals from the entry of summary judgment for the defendant, Japan Air Lines Co., Ltd. (JAL). The relevant facts are not disputed for purposes of the appeal.

On August 23, 1982, Abramson and his wife were passengers on JAL Flight No. 005 from New York to Tokyo, Japan, with an intermediate stop in Anchorage, Alaska. Shortly after take-off from Anchorage to Tokyo, Abramson suffered an attack from a pre-existing paraesophageal hiatal hernia. Abramson had been under medical care for this condition for approximately six years, but he did not inform JAL of this condition before the flight. Abramson had been hospitalized in June of the preceding year with internal bleeding, and surgery on an elective basis had been recommended to alleviate the condition.

According to Abramson, he can alleviate an attack by a "self-help" remedy of lying down, massaging his stomach from side to side, and, on occasion, by self-induced vomiting. Abramson's wife testified that she asked a JAL stewardess for a place where he could lie down and employ his "self-help" remedy, but was advised there were no empty seats. Discovery revealed, however, that there were nine empty seats in the first class section.

Plaintiff alleges that without the opportunity to employ "self-help", his condition worsened and he was hospitalized upon arriving in Tokyo. Subsequently, he contracted pneumonia and, on the advice of a Japanese physician, returned immediately to the United States where he underwent surgery to correct his hernia condition.

Plaintiff's complaint, filed in New Jersey state court and removed to federal court by the defendant, alleged in Count I that the negligent conduct of JAL and its employees aggravated his hiatal hernia. Abramson relies on the statement of a physician that had Abramson been able to employ his "self-help" remedy it would have been successful and would have prevented the pneumonia and obviated the need for immediate surgery. In Count II, plaintiff alleged that under the terms of the Warsaw Convention and the Montreal Agreement JAL is liable without proof of fault. In Count III, plaintiff alleged that the willful misconduct of JAL and its employees caused his injuries, entitling him to punitive damages.

The district court entered summary judgment for the defendant. The district court held there was no genuine issue of material fact with respect to the Warsaw Convention claim. It ruled that Article 17 of the Convention creates a cause of action only for injuries proximately caused by some "accident" on board the plane, and on the basis of the facts presented there was no "accident". The court did not consider whether there was a genuine issue of material fact with respect to Abramson's state law claims, because it held that "[t]he absence of an 'accident' precludes liability, both compensatory and punitive," under the state law negligence and willful misconduct claims. App. at 236a. ¹

On appeal, Abramson argues that the incident alleged constitutes an "accident" under the Warsaw Convention, and that the district court erred in holding that the Warsaw Convention precludes alternative bases for recovery in the absence of an accident.

II. Applicability of the Warsaw Convention

The parties are in agreement that the flight in question was in international transportation. The circumstances under which a carrier may be liable to its passengers in international transportation are specified in Article 17 of the Warsaw Convention, a treaty of the United States:

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.

49 Stat. 3018 (emphasis added). ² The district court gave summary judgment on the Warsaw Convention claim. It found: "Nothing in [the deposition testimony] so much as remotely suggests the occurrence on the flight of any event that could rationally be regarded as an 'accident' from which plaintiff's claimed injury resulted." App. at 240a.

The Warsaw Convention does not itself define the term "accident". This court addressed the definition of "accident" within the meaning of Article 17 of the Warsaw Convention in DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193 (3d Cir.1978). We held that the district court's charge to the jury as follows presented the correct legal standard for determining the occurrence of an accident:

An accident is an event, a physical circumstance, which unexpectedly takes place not according to the usual course of things. If the event on board an airplane is an ordinary, expected, and usual occurrence, then it cannot be termed an accident. To constitute an accident, the occurrence on board the aircraft must be unusual, or unexpected, an unusual or unexpected happening.

Id. at 1196. Accord Warshaw v. Trans World Airlines, 442 F.Supp. 400 (E.D.Pa.1977).

Abramson argues that although JAL did not cause his hiatal hernia injury, the alleged aggravation of the injury by JAL's acts and omissions constituted an "unusual or unexpected happening within the definition of" DeMarines. He attempts to analogize JAL's refusal to aid him as an unusual occurrence tantamount to other occurrences treated as "accidents", such as the following: terrorist attacks, Evangelinos v. Trans World Airlines, 550 F.2d 152 (3d Cir.1977) (in banc); hijackings, Krystal v. British Overseas Airways Corp., 403 F.Supp. 1322, 1323 (C.D.Cal.1975); and bombings, Reed v. Wiser, 555 F.2d 1079 (2d Cir.1977), cert. denied, 434 U.S. 922, 98 S.Ct. 399, 54 L.Ed.2d 279 (1977).

We are not persuaded that the situations are analogous. In none of those cases was the injury suffered during the course of a routine and normal flight, as here. In the absence of proof of abnormal external factors, aggravation of a pre-existing injury during the course of a routine and normal flight should not be considered an "accident" within the meaning of Article 17. See Warshaw v. Trans World Airlines, 442 F.Supp. at 413 (no "accident" where plaintiff's respiratory infection became aggravated during the flight, resulting in permanent hearing loss in one ear, because of a change in cabin pressure which is part of the normal flight procedure). See also MacDonald v. Air Canada, 439 F.2d 1402, 1405 (1st Cir.1971) (plaintiff's fall while standing in baggage claim area was not an "accident" because it was equally reasonable to suppose that some internal condition was the cause of the fall).

Nor do we find any support for Abramson in the Ninth Circuit's recent position, which conflicts with DeMarines and Warshaw, that hearing loss resulting from cabin depressurization is within the Warsaw Convention because it is an injury "proximately caused by the risks inherent in air travel," Saks v. Air France, 724 F.2d 1383, 1384 (9th Cir.1984). The injury Abramson suffered, unlike a hearing loss from cabin depressurization, is not a risk either associated with or inherent in aircraft operation. In any event, we are bound by this court's legal interpretation in DeMarines.

In DeMarines, we expressed "grave doubts" that a finding that an accident occurred would have been legally supportable when the evidence at most supported a finding that pressure change during the flight caused plaintiff's injury "[a]bsent testimony indicating that the plane's cabin pressure change was the result of some 'unusual or unexpected happening' ". 580 F.2d at 1197-98. This case presents an even more attenuated claim.

We agree with the district court that the alleged acts and omissions of JAL and its employees during the routine flight on which Abramson was a passenger do not constitute an "accident" for which the Warsaw Convention imposes liability on the carrier. Thus, judgment for defendant on the Warsaw Convention claim was properly entered.

III. Exclusivity of the Warsaw Convention

The district court failed to reach Abramson's negligence and willful misconduct claims under the apparent belief that these claims were precluded by the Convention's exclusivity of remedy. The district court held:

The allegations of negligence, or of willful failure, etc., add nothing to the claim, the first because liability, when it exists, arises without regard to negligence and the second because it had meaning only to support punitive damages, which are not recoverable unless there is a right to recover compensatory damages. The absence of an "accident" precludes liability, both compensatory and punitive.

App. at 236a.

JAL argues that "the express language of Article 24 of the Warsaw Convention establishes that its terms exclusively govern this action against JAL." Brief for Appellee at 13. We do not read the provision that way. Article 24 states:

(1) In the cases covered by articles 18 and 19 [cargo, baggage and delay] any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention.

(2) In the cases covered by article 17 [bodily injury] the provision of the preceding paragraph shall also apply, without prejudice to the questions as to who are the persons who have the right to bring suit and what are their...