Aquino v. Asiana Airlines

• Decision Date: 31 January 2003
• Docket Number: No. A098122.,A098122.
• Citation: 105 Cal.App.4th 1272,130 Cal.Rptr.2d 223
• Court: California Court of Appeals Court of Appeals
• Parties: Modesta AQUINO et al., Plaintiffs and Appellants, v. ASIANA AIRLINES, INC., et al., Defendants and Respondents.

130 Cal.Rptr.2d 223

105 Cal.App.4th 1272

Modesta AQUINO et al., Plaintiffs and Appellants, v. ASIANA AIRLINES, INC., et al., Defendants and Respondents.

No. A098122.

Court of Appeal, First District, Division 4.

January 31, 2003.

Certified for Partial Publication.^*

As Modified on Denial of Rehearing Feb. 27, 2003.

Esperanza V. Bada, La Puente, Law Offices of Esperanza V. Bada, Attorney for Appellant.

James Parton III, William A. Bogdan, Lynch, Gilardi & Grummer, James I. Bang, Law Offices of James I. Bang, Attorney for Respondent.

RIVERA, J.

Plaintiffs sued Asiana Airlines, Inc., and one of its managers after plaintiffs were not allowed to board their ticketed flight, claiming this refusal was due to their age and perceived physical limitations. The trial court granted defendants' motion for summary judgment, concluding that the Warsaw Convention or the Airline Deregulation Act of 1978¹ preempted plaintiffs' action. We hold that plaintiffs' claims are not preempted, and that triable issues of material fact exist as to most, but not all, of plaintiffs' causes of action.

I. FACTS AND PROCEDURAL HISTORY

Modesta Aquino and her husband, David Aquino, who is now deceased, (the Aquinos) had round-trip tickets on a November 29, 1999, Asiana Airlines, Inc., (Asiana) flight from San Francisco International Airport to the Philippines. The tickets provided that Asiana's services were subject to "conditions of carriage and related regulations which are made part hereof (and are available on application at the offices of carrier)...." Asiana's "General Conditions of Carriage for International Passenger and Baggage" included the following provision: "[Asiana] may refuse to carry, cancel the reserved space of, or remove enroute any passenger when, in the exercise of its reasonable discretion, [¶] (1) Such action is necessary for reason of safety; [¶] ... [¶] (3) The conduct, age or mental or physical condition of the passenger is such as to: [¶ ] a. require special assistance of [Asiana] or [¶] b. cause discomfort or make himself objectionable to other passenger, or [¶ ] c. involve any hazard or risk to himself or to other persons or to property. . . ."

On the evening of the flight, the Aquinos, together with several relatives, went to the airport.² The Aquinos' daughter, Purification Landero (Landero), and son, Percival Aquino (Percival), went to Asiana's counter with the Aquinos' tickets and gave them to a ticket agent, while the Aquinos waited. Percival asked the agent to provide a wheelchair for David Aquino. The agent asked who the passengers were, and Landero pointed her parents out to the agent. The agent then called an Asiana manager, Tae Keun Han (Han), who is a defendant in this action. Han approached the Aquinos, then asked Landero how old the Aquinos were. She told him they were 90 years old.³ According to Landero, Han told her the Aquinos were too old to travel. Han then told Landero the Aquinos would need a certificate from a doctor, certifying that they would be able to survive the flight, and suggested they visit the airport medical clinic to obtain a certificate.⁴ The Aquinos visited the medical clinic; but although the clinic staff stated the Aquinos looked healthy and did not require treatment, they did not provide a certificate. The Aquinos walked back to the Asiana ticket counter. On the way back, David Aquino complained that his legs hurt from the walking.

When the Aquinos reached the Asiana ticket counter, Landero told Han the clinic staff had refused to provide a medical certificate but that the staff had said the Aquinos looked healthy. She also told him it was difficult for her father to walk long distances; according to Landero, Han replied, "If he cannot walk, why does he have to travel? Then he should not be traveling." Landero persisted in asking Han to allow her parents to board the airplane, and Han told her he would call the police. He went to his office, and shortly afterward, police officers arrived.

The Aquinos left the airport. The family was later informed that the Aquinos could travel on another Asiana flight, but that they would need a medical certificate. The Aquinos decided not to fly on Asiana; and on December 3, 1999, they traveled to the Philippines on a flight offered by another airline. Asiana refunded the cost of their original tickets. David Aquino died in the Philippines on February 5, 2000.

On November 22, 2000, Modesta Aquino filed suit against Asiana and Han both on her own behalf and as successor in interest to David Aquino, alleging causes of action for discrimination, intentional infliction of emotional distress, negligence, negligent infliction of emotional distress, and breach of contract. Defendants brought a motion for summary judgment on August 24, 2001, claiming that the causes of action in the complaint were variously barred by the Warsaw Convention and the Act, and that there were no triable issues of material facts.⁵ The trial court granted the motion, ruling that there was no triable issue of material fact regarding the applicability of the Warsaw Convention or the Act, that there was no triable issue of fact regarding breach of contract or discriminatory animus, and that defendants had proffered a valid business justification for their actions. The trial court treated the challenge to the cause of action for negligent infliction of emotional distress as a motion for judgment on the pleadings, and granted the motion. Judgment was entered in favor of Asiana and Han on December 26, 2001. This appeal ensued.

II. DISCUSSION

A. Standard of Review

Our standard of review is well settled. In reviewing a summary judgment in favor of the defendant, we "independently assess the correctness of the trial court's ruling by applying the same legal standard as the trial court in determining whether any triable issues of material fact exist, and whether the defendant is entitled to judgment as a matter of law." (Rubin v. United Air Lines, Inc. (2002) 96 Cal.App.4th 364, 372, 117 Cal.Rptr.2d 109.) In doing so, "we construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the opposing party." (Ibid.)

B. The Warsaw Convention Is Not Applicable

The Warsaw Convention is "a comprehensive international treaty, signed in 1929, governing liability in `all international transportation of persons, baggage, or goods.' In signing the Warsaw Convention, `[t]he contracting states in 1929 believed that limitations on liability would promote the development of the fledgling commercial air industry by allowing the airlines to predict their exposure to monetary damages and thereby obtain needed capital and adequate insurance coverage.'" (Carey v. United Airlines (9th Cir.2001) 255 F.3d 1044,1047, fn. omitted.)

Only a few of the provisions of the Warsaw Convention are pertinent here. Article 17 provides: "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." Article 22 limits the amount of monetary damage that can be awarded for such accidents. (Order of Civil Aeronautics Board Approving Increases in Liability Limitations of the Warsaw Convention and the Hague Protocol, reprinted in hist. & revision notes 49 U.S.C. (2000) foil. § 40105, pp. 1144-1145; 31 Fed.Reg. 7301 (May 13, 1966).) Article 24, as amended,⁶ provides in pertinent part: "1. In the carriage of passengers and baggage, any action for damages, however founded, can only be brought subject to the conditions and limits set out in this Convention, without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights." (Montreal Protocol No. 4.) Article 25, as amended, provides: "In the carriage of passengers and baggage, the limits of liability specified in Article 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that he was acting within the scope of his employment." (Ibid.; see Brandt v. American Airlines (N.D.Cal. Mar. 16, 2000, C 98-2089 SI) 2000 WL 288393, 2000 U.S.Dist. Lexis 3164, *20; see also Tseng, supra, 525 U.S. at p. 167, fn. 10, 119 S.Ct. 662.)

Where it is applicable, the Warsaw Convention provides the exclusive remedy for personal injuries. In Tseng, the United States Supreme Court considered whether a passenger may maintain an action for personal injury under local law where the claim does not satisfy the conditions for liability under the Warsaw Convention. There, a passenger was subjected to an intrusive security search during pre-boarding procedures at an international airport in the United States. She brought an action alleging causes of action for assault and false imprisonment, but no "bodily injury," as that term is used in article 17 of the Warsaw Convention. The court held that the Warsaw Convention preempts actions under local law: "[R]ecovery for a personal injury suffered `on board [an] aircraft or in the course of any of the operations of embarking or disembarking,' Art. 17, 49 Stat. 3018, if not allowed under the Convention, is not available at all." (Tseng, supra, 525 U.S. at p. 161, 119 S.Ct. 662.)⁷ The court also noted that a passenger who had not sustained "bodily injury" could not gain compensation under article 17 for her solely psychic or psychosomatic injuries. (Tseng, at p. 172, 119 S.Ct. 662; see also Eastern Airlines, Inc. v. Floyd (1991) 499 U.S. 530, 552, 111 S.Ct. 1489, 113 L.Ed.2d 569.)...