Armstrong v. Hawaiian Airlines, Inc.

• Decision Date: 02 August 2019
• Docket Number: Civ. No. 18-00326 ACK-WRP
• Citation: 416 F.Supp.3d 1030
• Parties: James ARMSTRONG, Plaintiffs, v. HAWAIIAN AIRLINES, INC.; John Does 1-10; Jane Does 1-10; Doe Corporations 1-10; Doe Partnerships 1-10; and Doe Governmental Agencies 1-10, Defendant.
• Court: U.S. District Court — District of Hawaii

416 F.Supp.3d 1030

James ARMSTRONG, Plaintiffs,

v.HAWAIIAN AIRLINES, INC.; John Does 1-10; Jane Does 1-10; Doe Corporations 1-10; Doe Partnerships 1-10; and Doe Governmental Agencies 1-10, Defendant.

Civ. No. 18-00326 ACK-WRP

United States District Court, D. Hawai‘i.

Signed August 2, 2019

Dennis W. Potts, Trevor Shipley Potts, Law Office of Dennis W. Potts, ALC, Honolulu, HI, for Plaintiffs.

Abigail Marie Holden, Robert K. Fricke, Joachim P. Cox, Cox Fricke a Limited Liability Law Partnership LLP, Honolulu, HI, for Defendant.

ORDER DENYING DEFENDANT HAWAIIAN AIRLINES, INC.'S MOTION FOR SUMMARY JUDGMENT

Alan C. Kay, Sr. United States District Judge

For the reasons discussed below, Defendant Hawaiian Airlines, Inc.'s Motion for Summary Judgment, ECF No. 51, is hereby DENIED.

PROCEDURAL BACKGROUND

On March 9, 2018, Plaintiff James Armstrong ("Plaintiff"), proceeding pro se, filed a Complaint in the Circuit Court of the Fifth Circuit for the State of Hawai'i against Defendant Hawaiian Airlines, Inc. ("Defendant" or "Hawaiian Airlines") and numerous Doe Defendants, asserting state law negligence claims and state and federal law disability discrimination claims. ECF No. 1-2. On July 17, 2018, now proceeding with counsel, Plaintiff filed a First Amended Complaint in state court, ECF No. 1-4, that is substantially identical to Plaintiff's original Complaint. Defendant timely filed a Notice of Removal on August 21, 2018, averring that this Court has original jurisdiction over Plaintiff's claims under 28 U.S.C. § 1441(a). ECF No. 1 ¶ 24. Defendant's Notice of Removal asserts that Plaintiff's state law claims are completely preempted by federal law, specifically, Article 17 of the Convention for the Unification of Certain Rules for International Carriage by Air (the "Montreal Convention"). ECF No. 1 ¶ 23. As is discussed more fully infra, Plaintiff does not dispute that the Montreal Convention governs his claims.

On January 27, 2019, Plaintiff filed a Motion for Leave to File Second Amended Complaint, ECF No. 27, in which he sought to add another airline, Qantas Airways Limited, as a co-defendant. Magistrate Judge Richard L. Puglisi denied Plaintiff's motion on February 28, 2019, ECF No. 33. Plaintiff appealed the Magistrate Judge's order, ECF No. 36, but this Court, on April 16, 2019, issued an order affirming the Magistrate Judge's decision. ECF No. 42. On April 4, 2019, Plaintiff filed a Motion to Certify Qantas Airways Limited as Doe Corporation 1 pursuant to Hawai'i Rule of Civil Procedure 17(d). ECF No. 39. Magistrate Judge Wes R. Porter¹ issued an order denying that motion on May 14, 2019, ECF No. 48, which Plaintiff did not appeal.

On June 5, 2019, Defendant filed the instant Motion for Summary Judgment ("Motion"), ECF No. 51, together with a Concise Statement of Facts ("Def.'s CSF"). ECF No. 52. On July 9, 2019, Plaintiff filed his Memorandum in Opposition to Defendant's Motion ("Opposition"), ECF No. 56, together with a Concise Counterstatement of Facts ("Pl.'s CSF"), ECF No. 57, as well as Evidentiary Objections to one of the declarations attached to Defendant's CSF. ECF No. 55. Defendant filed its Reply on July 16, 2019. ECF No. 58. The Court held a hearing on Defendant's Motion on July 30, 2019.

FACTUAL BACKGROUND

This case arises from an incident that occurred at Brisbane International Airport in Australia in which Plaintiff injured his arm in the course of retrieving five checked bags from a baggage carousel. The following facts are undisputed and are principally drawn from the evidentiary exhibits attached to the parties' CSFs.² Plaintiff has an extensive medical history involving a number of injuries.³ Def. CSF ¶ 1; Defendant's Excerpts of the Deposition of James Armstrong Vol. 1 ("Def. Exc. of Pl. Dep. 1"), ECF No. 52-3, at 18:23–25, 19:1–25. In 2013, Plaintiff has suffered from tendinitis, fibromyalgia, and arthritis throughout his entire body since at least 2003. Defendant's Excerpts of the Deposition of James Armstrong Vol. 2 ("Def. Exc. of Pl. Dep. 2"), ECF No. 52-3, at 152:19–24, 153:5–8. Plaintiff and his wife, Jeannette Armstrong ("Mrs. Armstrong"), were passengers on an international Hawaiian Airlines flight from Kaua'i, Hawai'i to Brisbane, Australia on March 12, 2016. Def. CSF ¶ 12; Def. Exc. of Pl. Dep. 1 at 85:17–19. Plaintiff and Mrs. Armstrong checked five bags for their trip. Def. CSF ¶¶ 17–18; Def. Exc. of Pl. Dep. 1 at 66:21–23; 66:6–8. For the last eight to ten years, Plaintiff has requested wheelchair assistance within airport facilities while traveling. Def. CSF ¶ 10; Def. Exc. of Pl. Dep. 1 at 62:2–5.

Plaintiff requested and was provided wheelchair assistance for his March 12, 2016 flight to Brisbane. Def. Exc. of Pl. Dep. 1 at 70:14–17. Qantas Airways Limited ("Qantas") provides ground services for Defendant's passengers at Brisbane International Airport on an independent contractor basis pursuant to a Ground Handling Services Agreement.⁴ Def. CSF ¶ 15; Declaration of Julie Carter ("Carter Decl."), ECF No. 52-2, ¶ 2. Ms. Carter⁵ is currently Hawaiian Airlines's General Manager of Brisbane/Auckland Airport Operations, and was previously Hawaiian Airlines's Operations Manager of Brisbane Airport Operations. Carter Decl. ¶ 1. Pursuant to the Ground Handling Services Agreement, which was in place in 2016 at the time of Plaintiff's flight to Brisbane, Qantas provides wheelchair assistance to Hawaiian Airlines passengers arriving in Brisbane. Def. CSF ¶ 15; Carter Decl. ¶ 2.

Upon arriving in Brisbane, Plaintiff walked off the plane onto the jetway where a Qantas employee with a wheelchair awaited him. Def. Exc. of Pl. Dep. 1 at 70:14–17. Plaintiff walked to the top of the jetway and sat down in the wheelchair. Def. Exc. of Pl. Dep. 1 at 70:17–23. The wheelchair attendant pushed Plaintiff to the baggage claim where his checked bags could be retrieved, and parked Plaintiff's wheelchair adjacent to the baggage carousel. Def. Exc. of Pl. Dep. 1 at 70:23–24, 71:6. Plaintiff asked the wheelchair attendant if someone could help him retrieve his checked bags, and the wheelchair attendant replied "[t]here isn't anybody, mate." Pl. Dep. 1 at 70:23–25, 71:1–1. Plaintiff then asked the wheelchair attendant if a porter was available to help him retrieve his checked bags from the carousel, and also asked if the wheelchair attendant could call somebody to help. Def. Exc. of Pl. Dep. 1 at 71:1–4. The wheelchair attended responded that there was no porter available to help and that there was no one she could call to help Plaintiff retrieve his bags. Def. Exc. of Pl. Dep. 1 at 71:3–4.

The wheelchair attendant stood behind Plaintiff's wheelchair as the following events unfolded. Def. Exc. of Pl. Dep. 1 at 71:6–8. Mrs. Armstrong retrieved a luggage cart and parked it next to Plaintiff at the baggage carousel. Def. Exc. of Pl. Dep. 1 at 71:20–21. Plaintiff stood up and began offloading his bags from the carousel and placing them onto the luggage cart. Def. Exc. of Pl. Dep. 1 at 71:20–24.; Plaintiff stated that his back, knees, shoulders, and arms were "uncomfortable" as he retrieved the first four bags. Def. Exc. of Pl. Dep. 1 at 86:3–13. As Plaintiff retrieved the fifth and final bag, "something snapped in my forearm, which was my bicep tendon, I now know." Def. Exc. of Pl. Dep. 1 at 89:11–20. Upon injuring himself, Plaintiff cursed and "fell back in the [wheel]chair." Def. Exc. of Pl. Dep. 1 at 89:22. Plaintiff, pushed by the Qantas employee, and Mrs. Armstrong, who pushed the luggage cart, proceeded through customs. Def. Exc. of Pl. Dep. at 90:4–9. The Qantas employee left and Plaintiff and Mrs. Armstrong waited at a coffee shop for their son to pick them up from the airport. Def. Exc. of Pl. Dep. 1 at 90:9–12.

The principal dispute before the Court is whether an "accident" caused Plaintiff's arm injury—more specifically, whether the Qantas employee's rejection of Plaintiff's requests for assistance constitutes an "accident" under Article 17 of the Montreal Convention. Defendant argues that Plaintiff can point to no evidence indicating that an accident occurred, and has offered evidence that Qantas (as Defendant's independent contractor) has never assisted passengers with checked bags at Brisbane International Airport due to "Occupational Health and Safety concerns." Carter Decl. ¶ 3. Defendant also argues that because federal regulations and Defendant's own company policy do not mandate such assistance, the wheelchair attendant's rejection of Plaintiff's request was usual and expected.

Plaintiff, on the other hand, testified at his deposition that he arranged for "curb-to-curb" service with Hawaiian Airlines, which, based upon his own experience and what Hawaiian Airlines employees have told him, includes wheelchair assistance as well as assistance with baggage.⁶ Def. Exc. of Pl. Dep. 1 at 82:2–5, 83:8–25, 84:1–25, 85:1. Plaintiff also testified that wheelchair attendants retrieved his checked bags from the baggage carousel after a Hawaiian Airlines flight to Sydney, Australia in 2014, and after subsequent Hawaiian Airlines flights to Brisbane in October 2016 and in April 2019. Plaintiff's Excerpts of the Deposition of James Armstrong Vol. 2 ("Pl. Exc. of Pl. Dep. 2"), ECF No. 57-3, Pl. Exc. of Pl. Dep. 2 at 95:21–25, 97:1–17 (2014 flight), 108:2–23 (October 2016 flight), 120:18–25, 121:1–24 (April 2019 flight).⁷ More critically, however, the Ground Handling Services Agreement between Hawaiian Airlines and Qantas, as well as emails exchanged by Ms. Carter and another of Defendant's employees, all indicate that Defendant may have a policy of providing such assistance to wheelchair passengers through its independent contractor Qantas.

STANDARD

Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Rule 56(a) mandates summary judgment "against a party who fails to make a showing sufficient to establish the...