Adamsons v. American Airlines, Inc.
Decision Date | 27 October 1980 |
Citation | 105 Misc.2d 787,433 N.Y.S.2d 366 |
Parties | Hannelore ADAMSONS, Plaintiff, v. AMERICAN AIRLINES, INC., Defendant. |
Court | New York Supreme Court |
Robert M. Ginsberg, New York City, for plaintiff.
John M. Downing, New York City, for defendant.
The trial jury has rendered a verdict in the sum of $525,000. in favor of plaintiff in this action to recover damages for personal injuries against defendant American Airlines. Defendant ("American") now moves to set aside the verdict or in the alternative to limit its damages to the maximum $75,000. sum allowable under the Warsaw Convention (49 U.S.C. Sec. 1502 note).
The facts, although simple, are certainly unusual. The proof showed that in January, 1972, plaintiff, Dr. Hannelore Adamsons, was in Haiti conducting a sociological study when she was stricken with pain and admitted to a Hospital in Port-au-Prince suffering from a progressive paralysis of her lower extremities. Since the doctors at Port-au-Prince were baffled as to the nature of her illness, arrangements were made for her flight on American Airlines to New York City on February 1, and her immediate hospitalization at the Columbia Presbyterian Medical Center. Dr. Adamsons' friend, Mrs. Hamaty, made a reservation for plaintiff and was issued a prepaid first class ticket at least a day before the intended flight. Plaintiff was taken by ambulance to the airport for boarding on defendant's flight, and she was literally part-way up the gangway in a boarding chair when she was refused passage. The next available (Pan-American) flight was two days later, and during the enforced interval plaintiff's condition seriously worsened. Plaintiff's medical expert, Dr. Asa Ruskin, testified that the 48-hour delay in the surgical removal of a hematoma from plaintiff's spinal column, found when plaintiff arrived at Columbia Presbyterian Hospital, was the proximate cause of her almost total paralysis below the fourth thoracic vertebra, and entailed full destruction of her voluntary urinary and bowel functions. In Dr. Ruskin's opinion these catastrophic consequences (although not all ensuing impairments) would, with reasonable medical certainty, have been avoided if the two-day delay in surgical intervention had not been forced upon plaintiff. The court's instructions as to damages required the jury to fix its award, if any, within the limits of this expert testimony.
American urges that there was no basis for submission of the case to the jury because the applicable tariff rule (Rule No. 8 subd. A) in force pursuant to 49 U.S.C. § 1373 entitled it to refuse passage to plaintiff. The pertinent provisions of that Rule, which has the force of law, (Crosby & Co. v. Compagnie Air France, 76 Misc.2d 990, 352 N.Y.S.2d 75; aff'd 42 A.D.2d 1050, 348 N.Y.S.2d 957; app. den., 33 N.Y.2d 521, 353 N.Y.S.2d 1025, 309 N.E.2d 141, cert. den. 416 U.S. 986, 94 S.Ct. 2390, 40 L.Ed.2d 763), provide that the carrier will refuse to carry any passenger when:
"(a) such action is necessary for reasons of safety; ....
(or)
(c) the ... physical condition of the passenger is such as to
(i) require special assistance of the carrier, or ...
(ii) involve any hazard or risk to himself or the other persons ...."
American took the position on the trial and reasserts here that this tariff provision vested it and its supervisory employees at the Port-au-Prince airport with absolute discretion to refuse boarding to plaintiff once they determined that such action was necessary for the safety of Dr. Adamsons or anyone else, or that she would require special assistance. Plaintiff's evidence was that American was negligent in failing to ascertain the actual facts, which were that her condition was not contagious, that she was fully capable of making the flight with reasonable stewardess assistance within the contemplation of any ordinary first class passenger, and that American failed to contact the Port-au-Prince Hospital by telephone to speak to her treating doctor if further information or corroboration were required. Further, plaintiff urges that if American had made this inquiry it might well have been further apprised of the far graver risks confronted by the refusal to transport Dr. Adamsons. On this issue, the court charged the jury that they were not to sit in judgment upon or second-guess the decision of American's pilot and station chief at the airport that day and review its soundness. The main liability issue for them to determine, under the court's charge, was whether American was negligent or not in failing to gather the necessary information, so as to exercise a reasonably informed and intelligent discretion. The jury, in their verdict, has found American negligent on this score, and the court can find no reason for disturbing this determination.
(Underscoring added).
The court holds that this language cannot be stretched so as to apply to this case inasmuch as (i) plaintiff never was accepted as "a passenger" and never acquired that status; (ii) no "accident" may be said to have occurred; and (iii) plaintiff was not in the act of "embarking" or "disembarking" when the bodily injury suffered by her was sustained. These conclusions follow from existing case law.
(i) Where a plaintiff in a personal injury action seeks a recovery in excess of the treaty limit, the applicability of the Warsaw Convention damage limitations is a matter of defense and rests entirely upon the contract of carriage (In re Air Crash in Bali, D.C., 462 F.Supp. 1114; Manion v. Pan Am. World Airways, Sup., 430 N.Y.S.2d 486). Issuance of the ticket to plaintiff's agent, Mrs. Hamaty, was...
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